Public Bill Committee

[Mr. Jim Hood in the Chair]

Stephen O'Brien: On a point of order, Mr. Hood, I would like to place on the record that although I thank the Minister for the briefing he has put before the Committee on delegated powers in the Bill—a briefing that I asked for at the meeting we had after Second Reading—it was unfortunate that it only arrived on the evening of 7 January, which was less than 18 hours before the Committee started. In the briefing, the Minister stated that on publication of the Bill he also
“published the delegated powers memorandum for the Health and Social Care Bill by placing copies in the House Library.”
When I contacted the Library yesterday, I was informed that it did not have the memorandum. On further investigation with officials and with the Library, I was told this morning—the information is rather specific, so forgive me for quoting—that:
“This was a delegated powers memorandum which does not fall into the category of deposited paper unless it is specifically mentioned by a Minister as being placed in the Library, therefore it was not given a dep number. It was sent to the library but was obviously rejected as a dep by our deposited papers clerk.”
I understand from officials that they tried to deposit the paper in the Library but that the Library refused to take it, presumably on the ground stated. This morning, the Library has provided me with a hard copy of the memorandum. The first mention of its existence was in the briefing that I first saw just before the Committee met on Monday 7 January.
Although I understand the difficulty, Mr. Hood, perhaps you could assist me in ascertaining when the Committee was notified about the memorandum and given access to it. Given that a quarter of the Bill’s clauses are dependent on secondary legislation, the memorandum is a key document for the proper working of the Committee. I am anxious that there should be a timely consideration of all such documents, so that we can scrutinise the Bill. I would be grateful for your advice, Mr. Hood.

Jimmy Hood: Before I rule on the point of order, I invite the Minister to respond to Mr. O’Brien’s point.

Ben Bradshaw: Yes, I can do so briefly. My understanding is that—and I apologise for this—my officials were not aware of the new Library rule requiring some public commitment on the part of the Minister that he or she will place a document in the Library. Although I think that we have e-mails from way back showing that it was our intention to do so, my officials and I were not aware of the procedure. As the hon. Member for Eddisbury has graciously acknowledged, we tried to place the document in the Library, but it did not happen because of the new rule.

Jimmy Hood: I appreciate the point made by the hon. Member for Eddisbury, but it is not a point of order for the Chair. Having raised the matter and had the Minister respond to it, perhaps the usual channels can resolve the problem. It is not a matter that I consider a point of order.

Clause 1

The Care Quality Commission

Stephen O'Brien: I beg to move amendment No. 1, in clause 1, page 1, line 9, at end insert
‘with the totality of their quality inspection functions and duties passing to the Care Quality Commission’.
At the beginning of the first amendment, to clause 1, may I formally take this opportunity in our line-by-line sessions to welcome you, Mr. Hood, and your co-Chairman, my hon. Friend the Member for Old Bexley and Sidcup (Derek Conway), to the Chair to deliberate over our proceedings?
As is patently clear to all of us who have been studying the Bill for some time, clause 1 introduces the Care Quality Commission—the body that will take over from the Commission for Healthcare Audit and Inspection, the Commission for Social Care Inspection, and the Mental Health Act Commission. Clause 1(2) states that those three predecessor bodies are to be “dissolved”. We have proposed an amendment that would add after the word “dissolved” the phrase
“with the totality of their quality inspection functions and duties passing to the Care Quality Commission”.
It is vital that I explain why the amendment is important. It is at the beginning of the Bill and will, therefore, be important in relation to many of the other things that we deliberate on. Most importantly, it seeks to ensure that we leave as little doubt as possible for all those who will have to put in place the arrangements contemplated under the Bill—assuming that it has safe passage through the House. I commend the amendment to the Minister and hope that he will regard it as constructive, helpful, positive and not at all partisan, and as something that will help those who have to implement the Bill. I hope that he contemplates accepting it.
The amendment would establish continuity with the previous regulators, thereby smoothing the transition, and clarify the costs involved. We have heard a lot about transition in the last three sittings, during which we heard helpful oral evidence. All the regulators as currently constituted and many third-party groups have expressed concern at the silence of the Bill on their future function, as embodied in the new Care Quality Commission. Both the Commission for Social Care Inspection—CSCI, as I shall abbreviate it for future reference—and MHAC, the Mental Health Act Commission, have expressed concern that their work will be curtailed due to the merger.
CSCI has asked me to alert the Committee to a letter that it has sent, outlining its opposition to the Minister’s principled welcome to the Bill. It might be helpful if we recall that, during the course of CSCI’s evidence to us just a couple of sittings ago, it engaged in a dialogue with the Minister. CSCI is concerned that an impression may have been given about its public position in relation to the merger of the three bodies that it does not feel necessarily fairly reflects its position.
CSCI has written saying that it has now had the opportunity to look again at its statement of 24 October 2007—it was quoted by the Minister—that was prepared following the publication of the Department of Health’s response to the consultation on its wider regulatory review and its decision to proceed with the creation of a new Care Quality Commission, bringing together the functions of this commission and the other two. The letter from CSCI says:
“It did not make reference to the Bill now before your Committee.”
Indeed, the Bill was only published on 24 October and given its First Reading on 15 November. That statement was posted on the commission’s website, but it was not formally issued as a press release. CSCI, which is relevant in respect of the way that amendment No. 1 works, notes that in welcoming the overall policy direction, it also made it clear in the statement that there was a “great deal of detail” yet to be determined in the proposals. It says:
“This commission has always been of the view that a structural change in the regulation of social care and health services at this time is premature, however desirable that end might be in the longer term.”
That is important, because the amendment is intended to ensure that we have some continuity, rather than the pitfalls that might attend to something that is seen, by those who have the greatest experience and expertise in that area, as premature.
CSCI also said:
“The new organisation must have parity between health and social care.”
On Second Reading, the Secretary of State said:
“My hon. Friend”—
he was referring to the hon. Member for Blackpool, North and Fleetwood (Mrs. Humble)—
“raises the crucial issue with regard to the plan to merge the three current regulators. Social care must have parity in the new commission. That must be reflected on the board of the new commission and in everything that the commission does. I am pleased that she has given me the opportunity to reassert that that is the case, and that it needs to be the case. That point will be emphasised throughout the passage of the Bill.—[Official Report, 26 November 2007; Vol. 468, c. 37.]
Here is the opportunity for the Minister to ensure that that is given a true manifestation in the Bill.
CSCI also says that if additional functions, such as around hospital cleanliness, are not adequately funded by the Government, it fears that they will be funded out of cuts to social care regulation. Moreover, it has been asserted that CSCI has already
“reduced its recurrent operating costs by 33 per cent. in real terms between 2004 and 2009. The Government has also said that the new body will have to operate on a substantially smaller budget than the combined current budgets of CSCI, the Healthcare Commission”
and MHAC.
That is why putting amendment No. 1 into the Bill after the word “dissolved” would make it absolutely clear that in this case—rather than looking at the quality inspection functions—we are looking particularly at having the duties passed to the Care Quality Commission, without there being a danger that the things that CSCI has, over a relatively short period, worked so hard to establish in the crucial areas of both care and inspection fall through the gaps during what, as the Minister admitted, will inevitably be a disruptive time as one goes through change. Disruption attends upon any change.
In support of this amendment, I am aware that it is always nice to have short and crisp amendments. However, I know that there has been some discussion, through the usual channels, about the first few amendments inevitably being some of the more lengthily debated ones. Much of the ground that will be dealt with later will be covered by this very important first amendment, which would clarify the transition, the inspection functions, duties and costs.
I therefore move to the Mental Health Act Commission’s comments to help us chart our way through this. In its press release on the launch of the Bill, it said:
“The Mental Health Act Commission is concerned that with the merger of its functions into a large regulatory body with a wide variety of functions that monitoring of the operation of the Mental Health Act and the protection of vulnerable patients may not get the priority it needs”.
Chris Heginbotham, the chief executive of the Mental Health Act Commission—whom we all saw the other day when he gave evidence—said:
“Only by visiting detained patients regularly and frequently can abuses be identified and rooted out”.
During the evidence session, MHAC expressed the fear that their focus
“will get lost in a large organisation”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 8.]
MHAC submitted that
“There are six functions or sets of functions, and the way in which those functions are performed, that the MHAC considers to be vitally important”
for the CQC. Some are current powers; some are other powers that it would like. Briefly and in short form, those six functions are:
“Visiting and interviewing detained patients in private ... Engaging mental health service users ... Adequate organisational and personal accountability for monitoring and reporting on the needs and rights of detained patients; Statutory notifications of admissions, discharges and deaths of detained patients, and other relevant information; Ensuring adequate and appropriately trained staff”,
and an equality and human rights focus. That last will, of course, be the subject of a number of other discussions as we proceed through the Bill, but of course it matters even at this early stage.
A majority of third-party organisations has also expressed concern about the merger, hence this rather important approach to clarifying the purpose of the merger in the amendment. Age Concern, in its submission on the Bill, was
“very concerned that overall funding for this super-regulator will be far less than existing funding for the regulatory bodies that are being replaced”.
Carers UK argued that CSCI
“has built up valuable expertise on carers’ issues and on social care more broadly”,
and that
“It is essential that the new body is given sufficient power and resources to maintain a focus on social care and that it is not dominated by health.”
Help the Aged said:
“CQC’s budget must be sufficient to maintain frequency and quality of inspection and to ensure that the new Commission builds on the work of existing bodies — doing more, rather than less”,
and that
“Work on social care must be given fair priority and resource allocation within the Commission’s programme ... We are also confused by the fact that Regulatory Impact Assessment for this Bill sets out that the cost benefit of having one regulator rather than three depends on the scope and responsibilities of CQC, which will be set out in secondary legislation. This would seem to suggest that it is, as yet, impossible to tell whether the new Commission will be cheaper...We are seeking assurances from Government that CQC’s budget will be adequate to maintain the quality and frequency of inspections and to build on and develop the work of the previous organisations, rather than reducing its programmes.”
The General Social Care Council believes that
“it is important that the distinctive nature of social care and the values of social care regulation developed by the GSCC and CSCI continue to be recognised in the work of the CQC”.
During an oral evidence session the Association of Directors of Adult Social Services said that any loss of focus in social care would concern them.
The amendment would enable the commission to protect the current regulatory framework and grow organically, rather than legislatively, out of that. It was interesting that Which?, during oral evidence, commented that the Bill does not set out a clear statement of purpose for the CQC. The amendment would give protection against activities falling through the gaps during transition or getting lost in a bigger organisation, let alone defocused, because it is inevitable that priority is lost during the admitted disruption and instability. We are already hearing anecdotally of the inevitable recruitment and retention sclerosis that is bound to attend upon the current proposals and the possible demotivation of the people involved.
We will have many specific questions over the course of the Bill so I will not tack them on to the amendment. However, before the Minister contemplates his response to the amendment, I want to highlight something that came out for all us during the oral sessions—visiting rights. The visiting rights called for by the Mental Health Act Commission could be distinguished from the kind of visiting undertaken by CSCI and the Healthcare Commission. The Minister made clear in his evidence this morning that the Government do not think it right to dictate now who—I interleave the commission—should visit, and how often.
I hope that amendment No. 1 would enable the Minister to underpin the assurance he is seeking to give when addressing the very real concerns about those who are most practised, most knowledgeable and most pragmatic in making sure that—as managements and organisations—they have the continuing capacity to deliver for incredibly important, needy and often vulnerable people in our society.
Another point to highlight is the ratings system. The CSCI is concerned that its quality ratings system will fold—in particular the star-rating system for individual services that it plans to start rolling out during 2008. It is telling that the official questioned this morning noted that it is highly likely that the annual health check for hospitals will remain annual, but that the CQC will not need to do that for all its investigations; so despite Government statements about parity of social care, this morning’s oral evidence left us with the impression that officials may consider that health care regulation is of prime importance. I hope that the Minister can give us some genuine reassurance about that.
The amendment covers the issue of trying to identify the costs of transition, which I am sure are well recognised. It is important that I try to get a handle on that as we introduce the amendment. With regard to the costs of the merger, part of the impact of the amendment would be to mitigate the variables in the costings forecast for the CQC. A number of witnesses made statements on costings during oral evidence. Dame Denise Platt pointed out that this is framework legislation. Anna Walker noted that the commission will need to be resourced to do the job that Parliament sets for it and that the Bill is only a framework for that. The Minister has made available to the Committee a briefing on the registration requirements, which states that he is planning a formal public consultation to inform the scope—that is, which services fall within registration—and the requirements for registration. The question must be put before the Committee, and again I hope the amendment helps us with that. Without that information, how could the Minister make the cost estimates that he has made?
The regulatory impact assessment identifies that the net benefit range from a gain of £129.3 million to a loss of £52.7 million over the next 10 years, with a probable estimated benefit of £52.7 million plus a net gain of £3.3 million on the administration burdens baseline, is at 2005 prices. On 13 December, the Financial Times reported that the Minister had confirmed wind-up costs of £140 million, and there were departmental claims that it would save £60 million per annum. We must try to identify whether the amendment helps us to get a handle on that vital area of cost which, given the claims made for the combination, must be understood. Otherwise, we could be proceeding not only in the dark, but under false assumptions.

Angela Browning: The regulatory impact assessment says, in paragraph 1, that the costs mentioned by my hon. Friend are based on the framework, and that a lot of them will be identified only when the details are known. We are being asked to legislate on something with a set of figures that is extremely broad, and I wonder if my hon. Friend is minded to invite the Minister to provide, during the course of the Committee, more outline detail as to where those costs will fall.

Stephen O'Brien: I am grateful to my hon. Friend. I know that she is very good at working with and using costs and numbers, and I admire her for that as it is not a skill that is overwhelmingly presented during parliamentary life. It is a serious matter: costs matter, particularly in this case where so much is claimed for the cost benefit of what is taking place. I have already asked how the Minister was able to make his cost estimate, on the basis that it was made only on outline frameworks, without the benefit of the detail, and is still subject to consultation. Unless the consultation is not meant to count for anything, and it is all done and dusted and merely a question of going through the form, we are left having to make assumptions.
That is quite dangerous in the circumstances. If something is to become a successor body to three existing, high-performing bodies in the public arena, certainty is required above all, as there are many vulnerable people for whom this will not be the same as if something is invented, where we have a clean sheet of paper. There will be people with needs that continue today, tomorrow and the day after the organisation is established. If we do not have clarity about the costs, we are in grave danger of making errors as a legislature.

Angela Browning: We need to mix into the equation the question of fees that come from sources other than the Government.

Stephen O'Brien: That is an important question. I do not know whether my hon. Friend has had a chance to look at the terms of the money resolution that will be debated on Tuesday on the Floor of the House. As I read them, they are narrowly drafted in relation to the fees that are expected to be paid to the chairmen of the adjudication panels under the new determination procedures for continuing in practice. Apart from anything else, there are serious issues about the fact that the money resolution has come up at this stage, rather than being tagged on to Second Reading as one might have expected. It will look as though there have been subsequent negotiations, perhaps with the General Medical Council and others, which have led to that change at this late stage, and we will have some interesting timetabling issues as a result of that being dealt with on the Floor of the House at the same time as the Committee should be sitting.
My hon. Friend is right to highlight the need to control, as well as understand, the external fees required strategically to deliver the proposals into existence. The fees are highly difficult to quantify but, if sufficient detail has been produced, they should at least enable a realistic estimate rather than a stab in the dark. It is important to put that point on the record.
I am sure that the Minister has listened to the exchange with genuine and sincere concern, and will give a detailed assurance on the matter when he addresses the issues. It is important for him to reconcile the cost differences between the regulatory impact assessment and the Financial Times report, and the point raised by my hon. Friend. He also needs to explain how those costs were reached given that the work of the CQC is yet to be defined.
The Government say that in the long term, the merger will save £60 million per annum. The CSCI is concerned that the CQC will be on a challenging financial footing from the outset—most of us might accept that that is the case with every organisation. None the less, it will be challenging for the CQC, because the CSCI has already had that experience. I mentioned earlier that it has already demonstrably met its targets to trim costs and it should be publicly congratulated for doing so in a graded way. It is always difficult to pare down running costs, which it has managed to do without standards or the scope of its activities suffering. It is particularly concerning that, as some of the powers for the new commission are permissive rather than mandatory, the CQC may not be able to allocate funds to permissive powers. The Minister has confirmed that the wind-up costs will now amount to about £140 million. Will the Minister confirm those wind-up costs—clearly an important sum to understand—and, most important, tell us when the £60 million of savings will be delivered? What is the projection for that and how will they arise, not least by not impacting on the scope, quality and delivery of services?
I will now provide a final round-up of the amendment. It is with some apologies that I take time over it, but I hope that it sets the scene for an important amendment that would help to encompass so much more of what we are trying to achieve early on in our deliberations. Part of the impact of the amendment would be to mitigate the impact of the upheaval of further change and regulation. The Minister accepted, during the course of his oral evidence this morning, that there is inevitably some disruption when there are changes such as this. He said that we have to weigh up the benefit of going through the process against the inevitable disruption that we have to suffer. We have changes in the social care regulation timeline, and I shall look at how they have progressed.
The 1998 White Paper—“Modernising Social Services”—proposed structural change. The Care Standards Act 2000 created a single England-wide National Care Standards Commission, which was launched in 2002; 17 days later the Government announced that it was to be abolished. The Health and Social Care Act 2003 created the CSCI, which was launched in 2004, incorporating the social care responsibilities of the NCSC, the work of the Department of Health social services inspectorate and the SSI-Audit Commission joint review team. In 2004, the Government’s arm’s length body review ruled out a merger with the Healthcare Commission. In the 2005 Budget statement the Chancellor announced the merger. In his oral evidence, David Rogers of the LGA noted:
“Organisational change always causes some short-term disruption and some loss of focus for a short period.”——[Official Report, Health and Social Care Public Bill Committee, 08 January 2008; c. 82, Q193.]
The Minister was right to point out, in his evidence this morning, that Mr. Rogers thought that the long-term benefits outweighed the disruption, as I indicated earlier. However, Mr. Rogers said that everything must be attempted to minimise the disruption and loss of focus. The amendment would do that, but the Minister, unfortunately, has not yet told us how he would do it, so I hope that he will find our proposal a convenient way to short-circuit the concern that we would otherwise have, and will accept our amendment.
If the Minister wants a list of questions to address, perhaps I could usefully summarise the questions that I hope he will be able to address, as well as giving us some comments on the general arguments that I have advanced to underpin and substantiate the merits of the amendment. Will the Minister outline what quality inspection functions and duties the new regulator will lose from the sum of its parts? Would it not be better for the current regulators to be brought under one roof and one brand in the legislation, but for their functions to remain unchanged by Parliament at this stage and joint working delivered organically? Does the Minister agree that the constant restructuring of regulation has been disruptive, and will he tell us why the Government will get it right this time, and why the Committee should give them another chance?
Without having information on the scope and content of registration, how did the Minister make the cost estimates that he has made? Will he first reconcile, as I asked earlier, the cost differences between the RIA and the Financial Times report and, secondly, explain how those costs were reached, given the fact that the work of the CQC has yet to be defined? What percentage of the savings is due to organisational costs and what to regulatory costs? That distinction is of key significance, particularly remembering CSCI’s evidence that it has managed to pare to the bone the organisational costs. One must be careful in any walk of life—this certainly compares to my own business life—not to aim to achieve things that are unattainable. If one already asked management to reduce costs to the bone, one does not need to start chipping away at the bone itself. That is a recipe for disaster. When will the £60 million a year savings be achieved?
Does the Minister accept that there has to be some acknowledgement of, and even culpability for, this constant restructuring, which is hardly motivating for all those who so dedicatedly give their lives and careers to the public services that we depend upon? With that set of arguments, I commend the amendment, and I hope that the Minister will feel that the arguments are compelling enough to accept it.

Jimmy Hood: Order. I chose not to intervene when the hon. Gentleman was taking an intervention from his hon. Friend referring to a money resolution in the House next Tuesday. For the record, it is a Ways and Means resolution not a money resolution.

Stephen O'Brien: I am most grateful.

Sandra Gidley: I too welcome you to your role, Mr Hood. This may be an appropriate time to declare an interest. I am a fellow of the Royal Pharmaceutical Society and aspects of the Bill directly influence my profession. It is easier to state that at the outset rather than when we get into the specifics.
This is a brief amendment to a brief clause. In some ways we have had a stand part discussion as well, but I will seek clarification on that if necessary. Most of my comments are general but, as this is a 161-clause Bill, I will try to avoid repetition for the sake of it.
Liberal Members have supported the principle behind the merger, but it is right to ask questions: why now, when the existing the existing regulators are starting to work extremely effectively? Is it worth the upheaval and extra cost——and to achieve what, really? Reorganisations are always costly, not just in money but in staff time. We all suffered the pain of the reorganisation of the primary care trusts, where people were demotivated because they did not know whether they had a job and were unsure of their future role. When our regulatory system is beginning to work so well, there are concerns about putting the brakes on, and some things possibly not going as well as they could. The regulatory impact assessment has been mentioned, mainly in the context of costs. Costs are important and we all want to make maximum use of public money, but I must stress the point raised the hon. Member for Eddisbury.

Stephen Hesford: As I understand it, there was no vote on the principle of the Bill on Second Reading, so I am at a loss as to where the hon. Lady is going in asking “Why now?”, if the principle of the Bill has already been agreed.

Sandra Gidley: If the hon. Gentleman had been listening, he would have heard me say that we agreed in principle, but that I thought that it was pertinent to ask those questions. Just because a principle is agreed, it does not mean that the detail is agreed. We would not be doing our job properly unless we ensured that whatever replaces the current regulators does the job as well, if not better. That is a public responsibility that we all have. We have to make sure that we get the detail right. That, I thought, is why we were on this Committee.
The problem of costs has been raised, and it is not clear what they should be. The biggest problem, as highlighted by the hon. Member for Eddisbury, is that we do not yet know the full scope, breadth or detail of what the new body will do. It would be useful to have more detail when we discuss that.
I also want to echo the concerns raised by the Member for Tiverton and Honiton about costs being passed on to hospitals, nursing homes and other bodies. There has been a drift in that direction to some extent already, but it is robbing Peter to pay Paul, because in some cases those costs are just picked up by a different part of the NHS. Some clarity on that would help.
As well as the costs, the regulatory impact assessment pointed out other risks. It said that the key risks would be
“the Care Quality Commission establishment problems; lack of resources”—
but, and this is possibly of more concern to most of us in many ways, there was also
“slipping compliance with minimum quality standards.”
That is on the face of the impact assessment and we are asking these questions because I do not think any member of this Committee wants to see standards fall or to have to deal with the consequence of that.
The regulatory impact assessment states that there is a risk regarding the
“Care Quality Commission having a lack of resources to function properly; or that the Care Quality Commission is unable to properly carry out its functions or does so in a way that is more inefficient than under the current system.”
I hope that the Minister for the South West agrees that those are the very things that we seek to avoid. The hon. Member for Eddisbury raised some pertinent questions and I look forward to hearing the Minister’s response.

Kelvin Hopkins: It is a pleasure to serve under your chairmanship, Mr Hood. I declare an interest at the outset in that I am a co-chair of the Unison group of MPs——Unison has by far the majority of trade union members in this sector——and I am in receipt of a Unison pension as a former Unison employee.
While I am not in any way speaking in favour of the amendments, I want one or two assurances from my hon. Friend the Minister about costs and budgets. Clearly, there will be some economies of scale that will no doubt reduce costs overall—a figure of 40 per cent. has been mentioned. But there are concerns that this might put budget pressures on the inspection system. I would like my hon. Friend to give assurances that inspection will not be damaged by budget pressures because, particularly as I have mentioned previously, this is largely private sector now, especially long-term care for the elderly. It is important that there is a rigorous inspection system to ensure that care standards are maintained at a high level and nobody in a care home suffers as a result of inadequate performance by the providers because they are not being inspected. Can my hon. Friend could give some assurance on that?

Ben Bradshaw: May I make two general remarks before moving on to address some of the points made by hon. Members speaking to amendment No. 1? As I said in the evidence-giving session on Tuesday, when a new, independent, flexible and integrated regulator is established there is always tension between the desire to get those elements right, a desire to take as much as possible from the status quo and the desire to be prescriptive about what that new regulator should do in advance of its establishment. I put that tension out there because I suspect that tension is going to run through quite a lot of our discussions this afternoon, not only on this amendment but on others. Hon. Members ranged widely to discuss issues such as cost and transition, so I want to clarify them before speaking directly to the amendment.
The reason we did not go ahead with the integration before was that it was only under this Government, in 1999, that for the first time we had the idea of any kind of independent regulation of the health service and there was still a feeling that that culture and system needed to be given longer to bed down. The hon. Member for Romsey reminded us on Second Reading that her party argued then in favour of integration, although if she has not gone off the principle, she would rather have done it then than three years thence, which is odd. But I leave that there.
There was a discussion about it and we reached the general view that the system we had there needed longer to bed in. There is never an ideal time to integrate regulators, which I accept are working extremely well and have a very good reputation, however good the principles and however much all of us may support the principles of doing so. There are transitional challenges to deal with. There has been some confusion on cost because many people interpreted the £7 million figure that we included in the regulatory impact assessment as the total figure for all the costed transition. That is only the figure for the cost of establishing the new care quality commission. The much bigger figure of £140 million, which was in the explanatory notes, is our estimate of the transition costs, many of which are already being realised, as the hon. Gentleman recognised in his acknowledgement of the savings that have already been made by the existing regulators, not the set-up costs for the new commission. The £140 million includes the cost of redundancies, estates rationalisation and planned reduction of the operating costs. The savings are the result of the commitment that we have made, which we will realise through this Bill, to reducing the costs of all public service regulation by a third and that will mean £60 million a year. The answer to his question is that within three years, we anticipate that we would more than recoup the overall costs of transition, many of which have already been made, as the existing bodies have already managed to reduce their costs without, I think, reducing their effectiveness in any way.

Stephen O'Brien: It is helpful that the Minister is going through the costs. I think I understood him to say that some of the amounts encompassed within his declared figures, either in the RIA or in other figures, include costs that are already being saved or are being incurred by the existing bodies that will be succeeded by the CQC. Will he confirm that and help the Committee by indicating how much he is talking about as a proportion of what to expect to save or to incur the cost of? That would help us to know where we are on the timeline.

Ben Bradshaw: The hon. Gentleman is right. I am afraid I cannot give him the exact figures, but I can tell him we have been working with the existing commissions to help them achieve those savings and that means, we estimate, that by the time the new commission is established, the Healthcare Commission and the CSCI will be operating within a combined budget of £145 million. We expect the new commission to operate within the same budget. Including the MHAC functions, that will mean a total budget for the new commission of £151 million and that process is already well under way.
My hon. Friend the Member for Luton, North mentioned Unison, with whom I had a very good session just before Christmas in which we went through a lot of its concerns on the Bill in detail. I hope that I managed to reassure it on most of them, but I am happy to write to him, if he would welcome that, in more detail. I think I could even allow him to have a copy of the letter I wrote to Unison after that meeting and the issues we discussed. If he wants to come back to me later in this process and go through that, I would be very happy to do so.
My problem with amendment No. 1 is that we are establishing a new body and the amendment’s practical impact would be to move all the current functions and duties of the existing three bodies lock, stock and barrel on top of the ones we are establishing in the new one. That would be duplicative and create a lot of confusion. Many of the facets of the new commission’s functions are drawn directly from existing legislation, but there are changes.
For example, the new commission’s registration functions build on provisions for the Healthcare Commission and the Commission for Social Care Inspection under the Care Standards Act 2000, but have been made more flexible to allow for future changes in service provision. For the first time, they cover NHS services, as a result of which those services that have not previously been subject to the registration requirement now will be. In addition, CSCI has said, in particular, that the current regulators do not have sufficient powers to act directly when they find serious failings. We are giving the new independent regulator a range of tougher enforcement powers to enable that to be done.
One of the areas to which the hon. Member for Eddisbury referred that will not be carried forward is complaints. We are not requiring the new body to deal with second-stage complaints. Such issues have already been extremely burdensome for the Healthcare Commission and it is much more important that we improve the quality of complaints handling by health care providers. I think that it was Dame Janet who said in her evidence that that was a real mess at the moment and that it was too slow.
The most important thing is to give powers to the new Care Quality Commission, as we are doing, to ensure that health care providers have proper, decent and satisfactory complaints procedures for patients rather than burdening the independent regulator with a second-stage complaints responsibility. There will still be a second-stage complaint, which will be dealt with by the health ombudsman, but we did not consider it a good idea to burden the new regulator with such matters. We wanted it to concentrate on its core functions of quality and safety.

Stephen O'Brien: I am grateful to the Minister, not least for having delayed giving way so that he at last referred to the ombudsman, which is the point of my intervention. He will be aware that it has been said on Second Reading and subsequently that, as a result of this approach, concern has been expressed about whether the ombudsman will have the capacity to deal with the anticipated number of further complaints by way of the final court of appeal coming to him. It would be helpful if the hon. Gentleman would undertake, now or later, to ensure that we have a better handle on such matters because, for the proposal to work well, we must have confidence that the ombudsman is configured with the right capacity to deal with the anticipated increase in the number of cases.

Ben Bradshaw: I should certainly welcome a discussion about that at a later stage. I emphasise the fact that, by making the quality of the complaints procedures of health care providers a priority for the new Care Quality Commission rather than giving them such a responsibility, our aim is that the quality of complaints procedures becomes much better at provider level. That will mean that fewer complaints will need to go to a second stage.
The ombudsman will be dealing with more complaints than at present, but it is desirable first and foremost that we improve the quality of complaints procedures at provider level. As members of the Committee know, our constituency surgeries are full of people who consider that their complaints have not been dealt with properly. Many times, if the complaints had been dealt with properly by the provider, even if just by way of an apology, matters would often not have escalated and overburdened the Healthcare Commission. If matters are dealt with in that way, they will not overburden the ombudsman.

Anne Milton: I might have missed something, but my understanding of the office of the ombudsman is that it cannot investigate quality of care, but only the process. Will the Minister clarify matters?

Ben Bradshaw: My understanding is that, if we ask the office of the ombudsman to take sole responsibility for second-stage complaints, it will be able to investigate them and how they had been dealt with. That would involve quality, but I shall clarify matters for the hon. Lady as I am not absolutely certain whether we shall change that or whether it needs to be changed. It is something that I shall happily clarify for her as we progress.

Angela Browning: We heard in the oral evidence session that the Healthcare Commission finds it useful to identify emerging trends that might be the subject of a more detailed analysis on its part. Surely that also applies to the complaints procedure. If it is now to be divorced from the complaints procedure, emerging trends that might be a worthy subject for a more detailed analysis and report will be lost to it. If the office of the ombudsman does not initiate its own reports because of emerging trends, who will plug that gap?

Ben Bradshaw: The Care Quality Commission will still have access to trends and types of complaints, so it will still be able to track them to see whether there are an unusual number of complaints about a particular issue or against a particular provider, but it will not deal with and investigate second-stage complaints itself. It will still have that responsibility and still be able to act on that. In fact, that will be very important. It will remain a very important part of its job. With regard to an area in which I know she has a special interest——learning disabilities in Cornwall——that is exactly how the Healthcare Commission, as it now is, got involved in its investigation there. That will not change. It is just that it will not be burdened by the actual investigation of the individual complaint. That will be the responsibility of the ombudsman, if it has not been dealt with satisfactorily, which we hope it will have been, by the original provider. Did the hon. Member for Guildford want to intervene? We are having an extended debate on the complaints process, Mr. Hood, but I will take your guidance.

Jimmy Hood: If the Minister gives way to the hon. Member, I am sure that it will be in order.

Anne Milton: Thank you for the clarification, Mr. Hood. The reason we are emphasising this is that public confidence in the complaints procedure is crucial, as the Minister said, for his own postbag and for us all. Can he confirm that he will write to us to clarify exactly what remit the ombudsman will have because my understanding is that this will be a significant departure in the role of the ombudsman?

Ben Bradshaw: Yes, I will be very happy to do that.

Stephen O'Brien: The Minister has very rightly said that he will seek to help the Committee in relation to complaints, which bear very much on amendment No. 1 as one of the issues we are concerned about, and whether we will lose stuff through the gaps. He will be aware—and it may be useful when he comes back to the Committee to make sure that he gives a complete response to us and to think the issues through—that about 7,000 complaints a year are dealt with by the Healthcare Commission. Can he confirm the current backlog, for which, I understand, anecdotally, that estimates range between 30,000 and 80,000? Perhaps that will help by giving us a handle on what the capacity issues for the ombudsman are, even taking into account the improved quality of process. What about complaints in relation to privately funded social-care users?

Ben Bradshaw: I will come back to the hon. Gentleman, as I said, but I think he helps make my point: our prime concern is to improve the quality of complaints-handling at provider-level in order to avoid this burden and to improve patient satisfaction.
Having a good complaints procedure and making senior managers of providers responsible for the quality of that complaints procedure will be a requirement of registration under the new Bill and the new regulator will make sure that that happens.
This direction of travel has been welcomed by patients’ groups, who share our frustration that the current system complaints-processing is not satisfactory, by and large. There are some very good examples of good practice but I am afraid that that does not apply throughout the piece.
I shall turn to some of the other questions raised by the hon. Member for Eddisbury, particularly on visits. He asked about visits both in the context of MHAC and CSCI and I reassure him—this was raised by MHAC in its evidence on Tuesday and on Second Reading—that visiting powers are retained in the Bill as far as the existing visiting powers of MHAC are concerned. Schedule 3(8) proposed new section 120(3) states that it
“must make arrangements...to visit”.
Although I am reluctant to try to put the new regulator in a straitjacket in advance, we envisage that, in areas of particular concern to MHAC, visits would continue with their current regularity.
I return to a question raised by my hon. Friend the Member for Luton, North. On Tuesday, even Sir Ian Kennedy, in critical mode, said that one of the areas of the Bill that he was prepared to openly support was the idea of modern, precautionary and risk-based regulation. That includes not having a straightjacket where someone has to visit every institution once a year, every six months or even every 18 months, but instead, having a visiting policy that can be based on an assessment of risk. Facilities or institutions that are a greater cause of concern can be visited more regularly than those that have held an exemplary record for a number of years. Spot checks can be made whenever required, and so forth. It is important to allow the new regulator to build on that process, rather than trying to put them in a straightjacket in advance.

Angela Browning: On that point, we were given a specific example yesterday with regard to the Mental Health Act Commission implementing the Mental Health Act. For example, when an inspector goes into a secure unit to do a mental health inspection, sometimes they come across things that are happening to patients who are not detained under the Act against their will, but who are there as voluntary patients. The example was given of somebody tied into a chair who, because they were a voluntary patient and not sectioned, the inspectors could do nothing about. Does the Minister intend to amend the Mental Health Act and to extend the scope of that inspection?

Ben Bradshaw: My official is shaking her head, but I understood that one of the things that MHAC welcomed about the Bill was that its provisions would allow the commission to take action if it came across a similar case. We may not need to amend the Bill.

Sandra Gidley: I want to pick up on the risk-based assessments and visits, which I think are a worthy principle. However, we need to take account of situations where a nursing home, which previously has had a good record, has a change of hands. I have seen some dramatic changes after a change of hands.

Ben Bradshaw: I agree. A change of management could be a trigger point for the new regulator to want to carry out an inspection. However, it is not something that we need to prescribe—they will be the experts.

Kelvin Hopkins: This is a specific comment on my earlier remarks. My point was that, whatever the inspection regime, if there are budget pressures, there is a temptation to reduce the level of front-line work. To take a distant parallel, when water was privatised, many water authorities immediately cut their inspections to save costs—it rained a lot and they did not need to worry about leaks. I do not suggest that there will be immediate cuts, but budget pressures clearly impact upon the level of service that can be provided. There are inherent dangers if that is not specified.

Ben Bradshaw: I am sure that my hon. Friend is as happy as I am that we are not privatising anything under this Bill. I recognise the danger, and I assure him that the last thing that we want to do in setting up a new regulator, is to create the risk that in five or 10 years we will face horrendous headlines of scandals, which could have been avoided, because of what we have done. The savings that we are talking about—I hope the hon. Member for Eddisbury who asked the question will forgive me, I do not have the specific ratio—will be made, for example, by the amalgamation of back-office functions or a reduction in duplication. Some of the new inspection procedures and policies that existing organisations are undertaking, have already led them to make most of the savings that they needed to, in time for the integration of the three agencies. I suggest that, unless he has evidence to the contrary, as far as I am aware, that has not led to any serious problems in inspection or resulted in a lack of inspection. I hope to reassure my hon. Friend the Member for Luton, North on that.
On the ratings question that the hon. Member for Eddisbury asked, the quality ratings that the CSCI does will be able to continue under the legislation, and we anticipate that they will. Again, that is not something that we are laying down the law about, but that is certainly our expectation.
I want to make the point that I made before about integration. As health and social care provision become increasingly integrated, it may not be obvious, or even meaningful, to the new commission whether it should be following its functions and duties for health as the current Healthcare Commission or Mental Health Care Act Commission, or those for adult social care as the current CSCI. That is why, rather than transferring them lock, stock and barrel in their current legislative form, as the amendment recommends, we are creating integrated functions for the new commission. The amendment, rather than protecting the current provisions, would lead to fragmentation and confusion within the new commission. It would unbalance the coherent provisions that we have set out in the Bill and detract from its purpose. I hope that the hon. Gentleman will agree to withdraw it.

Stephen O'Brien: I am grateful that the Minister has sought to take seriously the issues that we have raised. I note, with some enthusiasm, that he has undertaken to burn a bit of midnight oil to let the Committee have more information on some specific areas that we have identified.
I am concerned that it was a long introduction, but it did cover a lot of points. Hon. Members on both sides of the Committee have found it important to raise those important issues about transition, where so many of the questions are arising, as well as some of the more focused points, which no doubt we will come on to in our deliberations.
In light of what the Minister said, it would be false to suggest that I feel either completely assured or satisfied. I dare say that those who observe our proceedings from outside will be concerned that the measure does not necessarily give us more of a handle on how this is all going to happen, or provide the safeguards. I am also concerned that we have not necessarily bottomed out all the costings, which would have helped. The Minister was reintervened upon before he had the chance to say that he had tried to put in the Library the estimates and the costs. Perhaps some savings have been secured before the CQC comes into existence. That may be information that he would like to share with the Committee. He gave us some assurance on the record, but if there were a possibility of showing us some of the financial information as regards the figures in the regulatory impact assessment, that would help us to understand where the flow of moneys is and what is already being worked on by those, as he rightly says, admirable and high-quality working bodies that will be succeeded by the CQC, which will then be challenged to make further organisational efficiencies without sacrifice to services.
It is with those thoughts that I think that it is appropriate to withdraw the amendment. In addition, I think that a lot of these matters will be reconsidered during the passage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Schedule 1

The Care Quality Commission

Stephen O'Brien: I beg to move amendment No. 158, in schedule 1, page 107, leave out lines 22 to 24 and insert—
‘3 (1) The Secretary of State shall appoint not fewer than 5 or more than 9 individuals as members of the Commission (to be known as Care Commissioners).
(1A) In appointing Care Commissioners the Secretary of State shall appoint an individual only if the Secretary of State thinks that the individual—
(a) has experience or knowledge relating to matters in respect of which the Commission has functions, or
(b) has experience or knowledge relating to matters in respect of human rights, or
(c) has experience or knowledge as a user of services relating to matters in respect of which the Commission has functions, or
(d) has experience or knowledge as a carer of a user or users of services relating to matters in respect of which the Commission has functions, or
(e) is suitable for appointment for some other reason.
(1B) In appointing Care Commissioners the Secretary of State shall have regard to the desirability of—
(a) the Commission having collective experience and knowledge relating to all of the Commission’s functions, and
(b) the Commission acting as a collective, unified body.
(1C) The Secretary of State shall appoint a Chair of the Commission.
(1D) Before appointing any person to the position of Chair the Secretary of State shall first seek the approval of the Health Committee of the House of Commons.’.

Jimmy Hood: With this it will be convenient to discuss the following amendments: No. 159, in schedule 1, page 108, line 27, at end insert
‘and who shall act as the head of paid service.
(1A) The Commission must appoint a director of adult social care, who is be an employee of the Commission.
(1B) The Commission must appoint a director of health care, who is to be an employee of the Commission.
(1C) The Commission must appoint a director of mental health, who is to be an employee of the Commission.’.
No. 160, in schedule 1, page 109, line 2, at end insert—
‘(3A) The Commission shall appoint—
(a) an adult social care committee,
(b) a healthcare committee,
(c) a mental health committee,
(d) a human rights committee.
(3B) The advisory committee and any committee or subcommittee appointed under subparagraph (3A) may consist of or include persons who are not members of the Commission.
(3C) The chair of each committee established in accordance with subparagraph (3B) must be members of the Commission.
(3D) The other members of each committee so established may include persons who are not members of the Commission.’.

Stephen O'Brien: I wish to introduce the amendments to try to identify, in the context of the greater specificity contained in schedule 1, whether the new commission is institutionally obliged by its structure to pay attention to all areas of its activity, including social care.
The precedents upon which I have sought to draw are from the Equality Act 2006, something on which many hon. Members have gained expertise and experience as it was so recent. That insists upon a similar structure for the Equality and Human Rights Commission. In her oral evidence, Dame Denise Platt noted that:
“it may be necessary to have some specific structural safeguards to ensure that the social care aspects of our commission’s work are not overlooked.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 7.]
Amendment No. 158 provides for a separate commission to which putative business directors of the CQC would report: that is, a management board and a reference board. That is similar to the current set-up of the Commission for Social Care Inspection. It would provide for an added tier of independence between the day-to-day running of the commission and the oversight of that operation. There is an obvious conflict of interest if the board is responsible both for overseeing good regulation of services and the use of resources in interaction with the political and indeed media spheres in what are often extremely fraught areas. It may be important to have a small number of commissioners to ensure a collective and cohesive commission acting as one.
That would also facilitate the point about intelligent regulation that Dame Denise Platt made at the oral evidence session. In response to one of my questions about the vital information base and the equivalence to the old community health councils’ bed watch, she said:
“One of the things that an intelligent commission and regulator does is make the unusual connections between pieces of information that are routinely collected and published. They can cross-fertilise them and ask the next question.”——[Official Report, Health and Social Care Public Bill Committee,8 January 2008; c. 21.]
I do not think any of us should underestimate the massive value of that. The Mental Health Act Commission, during the oral evidence sessions, made clear the need for
“adequate organisational and personal accountability at board level for the monitoring of and reporting on the needs and rights of detained patients.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 9.]
The amendment would put in the Bill the requirement for appointments to that board to be properly qualified. The legislation as it stands leaves to regulations any conditions to be fulfilled for appointments. Not only should that be in the Bill from the point of view of parliamentary scrutiny, but the qualifications for the board should, at the very least, be established by Parliament, rather than by Ministers if the CQC is to have the genuine independence which is claimed for it and which the Minister asserts. A third of the clauses in the Bill are dependent, of course, on secondary legislation—a point that was emphasised in the point of order at the outset of this afternoon’s proceedings.
The amendment further introduces a vetting procedure through the House of Commons Select Committee. That is a procedure suggested under the governance of Britain Green Paper, which proposed that certain senior public appointments should have parliamentary Select Committee scrutiny. Given that the new commission will be responsible for assessing and inspecting the safety and quality of services that together account for some 30 per cent., around £105 billion, of discretionary public expenditure in 2007-08—there is also significant private expenditure on adult social care and health care—it could be argued that that process would seem highly applicable.
Amendment No. 159 establishes that the commission must appoint directors for adult social care, health care and mental health. Lord Kamlesh Patel, in response to a question from my hon. Friend the Member for Tiverton and Honiton about whether his commission envisaged a separate team of people dealing with Mental Health Act issues, said:
“We would probably want to see a separate team that influences the rest of the organisation...what you do not want is a silo approach.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 21.]
I think all of us who have worked in and been responsible for large organisations—I can certainly put my hand up to that—know that there is a massive drag on organisations and a motivational negative effect if they work in silos, rather than have open cross-fertilisation, so that expertise runs freely across and information, above all else, is seen to be an opportunity and not a power for individuals.
On amendment No. 159, there is a question as to whether the director of mental health would oversee only the responsibilities formerly taken by the MHAC, or whether he or she would oversee the regulation of mental health provision. I hope that the Minister may be able to help on that point.
On Second Reading, the Secretary of State said:
“Social care must have parity in the new commission. That must be reflected on the board of the new commission and in everything that the commission does. I am pleased that she has given me the opportunity to reassert that that is the case, and that it needs to be the case. That point will be emphasised throughout the passage of the Bill.”—[Official Report, 26 November 2007; Vol. 468, c. 37.]
Notwithstanding the fact that I have been supportive by withdrawing the previous amendment, I hope that the Minister will regard the proposal as an absolutely wonderful opportunity to give effect to the express words of his Secretary of State.
Amendment No. 160 would provide for committees to be established that cover adult social care, health care, mental health and human rights. They would consist of a mix of members of the commission proposed under amendment No. 158, employees of the paid service and, if necessary, individuals who are external to the CQC. The committees would both support and interrogate the work of the different areas of the commission and go some way to calling it to account in addressing each area of its responsibility.
I now wish to touch on the Joint Committee on Human Rights and a matter that has been of some concern to other hon. Members. Much has been made of the broad issue of a human rights focus for the commission. In its submission, the CSCI says that it
“believes, in line with general Government policy, that the new regulator should take a strong rights based approach towards the people who use social care and health services...and their carers”,
and that it has a desire for that to be reflected properly in legislation.
In its recent report “The Human Rights of Older People in Healthcare”, the Human Rights Committee recommended
“that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”
It noted that
“many witnesses, including the inspectorates, providers and organisations supporting older people, expressed concern about continuing poor treatment of older people in healthcare”.
It charted the failings under articles 2, 3 and 8 of the European charter of human rights on malnutrition and dehydration; inadequate assessment of a person’s needs; abuse and rough treatment; neglect; carelessness, poor hygiene and bullying, and patronising and infantilising attitudes towards older people. Article 8 covers the lack of privacy in mixed sex wards—another broken commitment by the current Government—and lack of dignity, especially for personal care needs; insufficient attention paid to confidentiality; inappropriate medication and use of physical restraint; too hasty discharge from hospital; fear among older people of making complaints and eviction from care homes. Article 14 makes two further points that concern discriminatory treatment of patients and care home residents on grounds of age, disability and race and communication difficulties, particularly for people with dementia or those who cannot speak English.
Furthermore, the Human Rights Committee, in its report, praised the MHAC’s approach to human rights. In a ringing endorsement, it said that
“in our view, lessons can be learned from the more systematic approach pioneered by the Mental Health Act Commission...We are aware of the recent publication on implementing human rights by the MHAC in partnership with the Department of Health and what was then the Department for Constitutional Affairs. MHAC state their purpose was ‘incorporate a human rights framework fully in the work of the MHAC, so that it becomes a recognised part of regular activity across the organisation’...The MHAC publication contains accessible and practical information on the steps that it took to complete the project and it identifies what people working within the commission learned from it. We are encouraged by the fact that the MHAC is to be merged with the Healthcare Commission and CSCI and urge that the highest common denominator should prevail.”
In its submission, the Mental Health Act Commission called for
“an overarching principle of equality and human rights, focussing at all times on the civil, legal and human rights of patients”.
The amendment, building on the two with which it is grouped, would make matters clear in the context of human rights. The commission’s figures make it clear that black African and black Caribbean patients are more than three times as likely as the average to be admitted to and detained in hospital. The commission says that the black other group, especially men—largely second and third-generation black British patients—are over 10 times, and as high as 18 times in the 2005 results, more likely than the average to be admitted. It says that there is no epidemiological evidence to suggest that black people are 10 times as likely to have mental illness. MHAC also notes that it has found a surprising and shocking number of very serious breaches of the right to respect for human dignity and privacy, which on occasion may have amounted to serious ill-treatment of women patients.
While on our first outing on human rights, an issue that will be covered extensively by others, I want to highlight an area that I hope will give the Minister the necessary food for thought in respect of the amendments. The human rights issue is naturally all encompassing, but political and public interest has recently been most exercised by the human rights loophole under which private care homes are not bound by the legislation and can therefore evict residents without breaching article 8. Their public sector counterparts cannot do so.
We are sorry that the Government are dragging their feet over this. During the 15 June 2007 debate on the private Member’s Bill introduced by the hon. Member for Hendon (Mr. Dismore) to clarify the Act, the hon. and learned Member for Redcar (Vera Baird), the former Under-Secretary of State for Constitutional Affairs, herself a human rights lawyer, talked the Bill out rather than bringing it before the detailed scrutiny and consideration of Committee. It is something that we would have welcomed. On that occasion it was something that we did not resist; indeed, we would encourage it. We were therefore disappointed to see that that was the official view of Government on that occasion.
In a Westminster Hall debate, the Under-Secretary of State for Health, the hon. Member for Bury, South (Mr. Lewis), said:
“The current state of affairs is an anomaly, and neither Government nor Parliament intended that publicly funded residents living in private sector establishments would not be covered by the Human Rights Act 1998. That is an unintended consequence, and we need to put it right. The Government have decided that the appropriate time to do that is when we consult on the new rights and responsibilities Bill, in the context of a new constitutional settlement, on which the Ministry of Justice will lead.”—[Official Report, Westminster Hall, 11 December 2007; Vol. 469, c. 50WH.]
I rather hoped that there may be an opportunity for Government to do some joined-up thinking and even some joined-up working here, and contemplate that this is an area where, at the very least, as it was not possible under the private Member’s Bill procedure, we could have the discussion on the issue in Committee and under its rules. Even if the Minister were to say that he is not minded to proceed with amendments that deliver the human rights angle—I cannot be sure, and I hope that he might find himself persuaded by arguments produced by others—it would none the less be extraordinarily helpful for the Committee to place on record some of the arguments which would otherwise have been considered, had the hon. and learned Member for Redcar enabled the hon. Member for Hendon’s private Member’s Bill to proceed to Committee. I am pleased to note that that view is shared across the House as the amendments that relate to some of the human rights have been supported by others.

Sandra Gidley: On first glancing at these amendments, I thought that it was useful to have greater clarity about the composition of the board. I would have hoped that that was an automatic consideration. I was interested when the hon. Member for Eddisbury referred to the Equality Act 2006 as I think I might be the only person here who had the pleasure of serving on that particular Bill Committee. During the progress of that Committee, numerous attempts were made to prescribe the detail of the board even more. Those were largely resisted because the underlying assumption behind the Equalities Act was that a rights-based approach should be at the heart of everything and that it did not help to continue some of the silos that existed with the separate equalities bodies.
Obviously we are now in a situation that is not quite the same. A large number of legitimate concerns have been raised about whether social care may be diminished in some way. I have a lot of sympathy with that argument because social care has always been a second cousin and it was pointed out in the evidence on Tuesday that the bulk of the inspection will be in the social care sector. Something will have gone badly wrong if the social care sector does not have a fair share of the action.
Although I hope that such considerations are automatic, it is useful to think about new sub-paragraph (1B), which mentions
“collective experience and knowledge relating to all of the Commission’s functions”.
Again, I hope that, when a board is appointed, care is taken to ensure that all functions are represented in some way. To draw a parallel with the Equality Act, we had interminable discussions about whether there would be enough women on the board, whether there would be enough people from ethnic minorities, and whether people with disabilities would be adequately represented. Most people reluctantly decided to go with the flow to a certain extent and to trust that it would happen in practice. So far, there have not been any problems, but I can well understand why there were concerns.
In an earlier new sub-paragraph, there is an attempt to beef-up public participation and involvement. Because concerns were raised on Second Reading, I would welcome the Minister’s comments on that subject. I also query what new sub-paragraph (1A)(e) means. It seems to be a catch-all measure. I can understand why it was put in, but I wonder whether there are any circumstances in which the hon. Member for Eddisbury envisages that it would be used. On new sub-paragraph (1D), as a member of the Select Committee on Health, I understand that there have been a number of recommendations about Select Committees taking on extra powers, but more time will be needed if that is to happen because it is hard to keep on top of the relevant legislation.
I shall briefly discuss amendment No. 160. I fully support the Joint Committee on Human Rights, but am yet to be convinced about the merits of separate adult social care committees, health care committees and mental health committees. Again, it is particularly important that there is greater awareness of mental health throughout the commission because one of the problems in society as a whole is that the issue of mental health is often parked-off to another Department. Even in the health service, there is often a separate mental health trust and that does not help the wider understanding of mental health issues in society. Rather than having a separate committee that seems to have responsibility for mental health issues, I would prefer the Bill to establish a way of underpinning everything else. Because so many people are affected by mental health issues and there is so little understanding, it is important to make that subject almost a core value of the commission.

Stephen O'Brien: I am rewinding slightly to the hon. Lady’s question about why new sub-paragraph (1A)(e) is in the amendment. It is indeed intended to be a catch-all, but we should recognise that the commission intends not to set itself up against the Government or the Secretary of State, but to ensure that it runs with the grain of what is trying to be achieved cross-government and independently by those experts in the sector who are at a supervisory rather than operative level. That is why the catch-all is there: to ensure that the Secretary of State’s influence can genuinely be applied in that area.

Sandra Gidley: I thank the hon. Gentleman for that clarification. I would question the need for all the committees, but I recognise the spirit in which the amendments were tabled, which was to try to deal with those legitimate concerns.
The hon. Gentleman referred to various groups that were discriminated against and mentioned Afro-Caribbean men. Under the Equality Act, there is a race equality duty within the health service, so again that should be a core function at the heart of the commission anyway. If we have got the processes right and everything is working, I wonder whether this is absolutely necessary and whether we need an internal body to scrutinise that, or whether it is best left to the equality body. As someone who has taken a great interest in equality issues, I am trying to avoid unnecessary duplication.

Stephen O'Brien: The best I can do by way of intervention is simply to say that, in the running and supervision of the processes and governance of a large organisation, anything that helps at a very economic cost—and, hopefully, a commission of this nature would not be high-cost—is where one gives priority and focus.
The easiest example is that of a large company manufacturing in many countries all over the world. If the board that is overseeing all the operations has as agenda item No. 1 every single time health and safety, particularly safety breaches, it is likely that the whole organisation culturally will come to know that the board focuses on and values that and it is not just an add-on in order to tick a box and satisfy the culpability-avoidance of others. That is what the proposal is intended to achieve. It is to get focus at an economic cost.

Sandra Gidley: I take the hon. Gentleman’s point but I question whether we need a specific person with a specific role to do that, and whether that should be a core function of that particular board. I look forward to the Minister’s comments on the amendment.

Kelvin Hopkins: I will speak briefly to make two points. The hon. Member for Eddisbury raised, at least implicitly, the question of human rights and my amendment to a later clause, which I will not discuss now. It clearly is necessary to have a capacity to monitor human rights within the structures that are set up. One does not want to be specific. I am not being specific, but clearly that is needed.
I wanted to raise another issue, which was touched on by the hon. Member for Romsey: racism within the care services. That has been raised strongly with me by people who work in the industry. Racism shows itself in a variety of ways and circumstances, both with staff and those in receipt of care. It is important to have representation at every level, particularly of groups of minority ethnic people because these are such sensitive areas. It does happen where management bodies are all-white, all-middle-class and all-professional and do not have sufficient sensitivity to the concerns and to what goes on at the grass roots, at the basic service level.
I know that there are serious concerns about racism towards staff and towards patients and, of course, a lack of sensitivity between the different minority groups. I represent a constituency with tens of thousands of people from a range of ethnic minority backgrounds.

Sandra Gidley: I was a little concerned about the comments about racism. I am glad to clarify a little because my experience is that there are instances that are often regarded as racist but are unintentional. It is a lack of understanding, rather than something that needs to be dealt with by a heavy hand. It is more about getting the processes and the understanding right in the first place, rather than coming in afterwards.

Kelvin Hopkins: I thank the hon. Lady for her intervention. I agree that it is a matter of sensitivity and that people sometimes misunderstand each other, yet there are definite instances of racism as well, which I have been informed about.

Stephen O'Brien: The hon. Gentleman is raising a vital point. I am glad he is taking the opportunity to do that now, as I am absolutely sure that the whole Committee will know of people in care settings who are perhaps of a generation or personality that has not really caught up with how the modern world, quite properly, now treats all its citizens. They might say that they do not wish to be cared for by someone not of apparent Caucasian origin. It is absolutely vital that we recognise that existing laws and management processes are intended to ensure that that is addressed in a sensitive and properly managed way. The vital question that the hon. Gentleman raises is whether our Committee should be considering whether there is any additional legislative requirement to help reinforce what now needs to happen to try to address such extremely difficult and sensitive problems.

Kelvin Hopkins: The hon. Gentleman makes valid points; I am not suggesting anything specific for this stage of the Bill. There are other aspects; for example, those from religiously conservative origins from outside Britain may be sensitive about being cared for by people not of their community or gender. Such matters are of serious concern in my own constituency, and over time one hopes one becomes more relaxed about them. The way to deal with that sensitivity is to make sure that there are representations from minorities at every level—including the highest level—so that we do not just gloss over the difficulties and that people are sensitive to them. It is not about having just one representative from a particular group who may perhaps be more liberal and relaxed. Lord Patel, for example, is urbane, sophisticated and westernised, but some people are not quite like that. One wants a form of representation at every level, although not necessarily with reserved seats. It is about Ministers being sensitive to these matters and making sure that there is a balance on all bodies at every level.

Anne Milton: It is not only about representation. Does the hon. Gentleman agree that it is also about training and cultural awareness? That is absolutely crucial, and always a concern. When there is change, there is even more concern about budgets getting tight—I know that has been mentioned already—and one thing that goes is training, particularly cultural training, which is seen as a soft target.

Jimmy Hood: Order. Before the hon. Gentleman replies, we seem to be straying a bit from the amendment.

Kelvin Hopkins: I take your strictures, Mr. Hood. I have made my point; the hon. Lady is absolutely right. The way to ensure that we get that training is to have representations from minorities on all bodies to make that point.

Ben Bradshaw: To return to the amendments—[Laughter.]
The amendments seek to specify a great deal more prescriptive detail than we feel happy with in the Bill. They refer to appointments, board responsibilities and the advisory committee make-up for the new Care Quality Commission. As I have said already, we are establishing a commission to be an independent voice on health and adult social care matters. We believe it should be for the commission itself to establish the organisational structures and split of responsibilities that it determines it needs best to carry out those functions and deliver its aims. That should extend to the executive team it chooses to have, the committees it feels are appropriate and whether those committees are chaired by a member of the commission or by someone else. I remind the Committee that the new commission will be under statutory duties to fulfil the functions of the existing regulators, and will be answerable through Ministers to Parliament, so there is that guarantee.
Secondly, we are establishing a single regulator to reflect the greater integration of services taking place across previous boundaries between health and adult social care. An integrated regulatory system, where all providers are assessed against the same standards by the same body, will provide the consistency and assurance that we believe the public expect. Specifying that the commission must have executive officers and committees that lead on different client groups could undermine the commission’s ability to adopt that integrated approach; it could serve only to invite calls from other groups that would also like their specific interests to be represented at a high level in the organisation.
That point extends to how the commission determines that it should address its responsibilities under the Human Rights Act 1998. I will say a little more about that in a second, but as a public body, the commission—I emphasise this—will be subject to the Act and will have to carry out its functions in ways that are compatible with it. There is nothing to prevent the commission from appointing expert advisers to give specific advice, where it considers that necessary. We believe that it is better to give the body the freedom and powers to determine that, rather than trying to impose something centrally.
To clarify things in a little more detail—I know that we will discuss human rights later, but this was referred to by my hon. Friend the Member for Luton, North and the hon. Member for Eddisbury—the Bill makes it clear that decisions on registration can be taken by reference to the registration requirements and the requirements of any other piece of legislation that the commission thinks relevant for registration purposes. That means that if the commission is satisfied that a registered provider is not meeting its obligations under the Human Rights Act, it will be able to take appropriate enforcement action. As the hon. Member for Eddisbury acknowledged, the Government are committed to ensuring that independent sector care homes are covered by the Human Rights Act. We hope to address that in the forthcoming British Bill of rights and responsibilities, which will allow us to deal with it in the wider context of the public authority definition. In the meantime, this Bill will ensure that the Care Quality Commission can enforce regulatory requirements, in line with the relevant provisions of the Human Rights Act, in its current form and as it may change in the future. The reason we feel that it is better to wait for the forthcoming British Bill of rights is that the meaning of public authority goes much wider than care homes and it is important that we find a lasting and effective solution. As has already been acknowledged, the Ministry of Justice will address the issue in its consultation on the British Bill of rights and responsibilities, and draw on a wide range of expertise during that process.
I hope that it is clear that we see the independence and effectiveness of the chair and board as crucially important in establishing an effective commission. We will ensure that the commission is a model of independence in that respect, as we did when establishing the Healthcare Commission and the CSCI. Amendment No. 158 specifically proposes that the appointment of the chair be subject to pre-appointment scrutiny by the Health Committee. I am pleased that the Opposition are supporting our proposals for strengthening the role of the House of Commons in public appointments, which the Government set out in the Green Paper “The Governance of Britain.” That includes proposals to involve Select Committees in certain public appointments; however, it suggests that appointments already subject to independent scrutiny and regulation are probably not suitable for additional pre-appointment scrutiny by Parliament.
Appointments to the Care Quality Commission will be made by the Appointments Commission and regulated by the independent Commissioner for Public Appointments. I do not, therefore, believe that it is necessary for the Select Committee to have an additional scrutiny role. However the Government are currently preparing a list of appointments that would be suitable for pre-appointment scrutiny. The list will be agreed with the Liaison Committee and, where appropriate, with the Commissioner for Public Appointments, and we should await the outcome of that process. I therefore ask the hon. Members to withdraw the amendments.

Stephen O'Brien: I just want to be absolutely clear that the Minister’s final statement about the use of the public appointments commission is intended to be the definitive position, in light of the comments of the Secretary of State on Second Reading.

Ben Bradshaw: Yes.

Stephen O'Brien: I have listened carefully to what the Minister has just said and to the other hon. Members who spoke, on both sides of the Committee. It is important to recognise how the concept applied in the amendments is intended to highlight the need for independence. The words used by the Minister in response to that may be helpful in our forthcoming discussions on independence. I hope that we will be able to reflect on the ability to reinforce that through the way in which it is intended that the Bill will operate.
In terms of the concepts in the amendment, however it seems to me that as we develop our scrutiny of the Bill, if the balance the Minister identified between the underlying tension between prescription and the freedom to act independently becomes clear—including the conceptualisation of the establishment of bodies and recognising also the danger of insufficient prescription—there will not be continuing organisational confidence that things would not fall through the gaps. This ties into the previous discussion. Looking at the question holistically, if we feel that the whole scrutiny of the Bill does not satisfy the concerns that underpin a serious set of amendments in this group, either we would be able to come back to it on Report, or possibly we would want it to be considered in another place.
Some of the reassurances have been helpful, and give us a clue as to where the debating points are as we proceed. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Greg Mulholland: I beg to move amendment No. 131, in schedule 1, page 107, line 23, after ‘State’, insert—
‘(aa) a Deputy Chair so appointed with particular responsibility for human rights’.

Jimmy Hood: With this it will be convenient to discuss the following amendments:
No. 132, in schedule 1, page 108, line 27, at end insert—
‘( ) The Commission must insert a human rights director who is to be an employee of the Commission.’.
No. 133, in schedule 1, page 109, line 2, at end insert—
‘( ) The Commission must appoint a human rights committee.’.
No. 130, in clause 2, page 2, line 14, at end insert—
‘( ) the need to observe the human rights of those accessing adult social care and health services.’.
No. 79, in clause 2, page 2, line 20, at end insert—
‘(g) the need to ensure that decisions regarding the degree of risk to service users and the prioritisation of regulatory action protect and promote respect for human rights in accordance with the European Convention on Human Rights.’.

Greg Mulholland: Thank you Mr. Hood; it is a pleasure to serve under your chairmanship.
As someone who was something of a sceptic, I take this opportunity to say that I felt the evidence sessions were extremely worth while in allowing the Committee to probe this very important issue. My only complaint would be that—unlike this Committee Room where we have space to stretch out—there was not enough room, so there should be a larger room for future events. I thank the hon. Gentleman for Wirral, West for his helpfulness and graciousness this morning in moving to allow me to sit with my colleague. It was much appreciated.

Stephen Hesford: Will the hon. Gentleman give way?

Jimmy Hood: Order. I think we should get to the amendment.

Stephen Hesford: Just in passing—

Jimmy Hood: Order.

Greg Mulholland: I would be happy to give way but unfortunately I have been overruled.
The amendments relate to an ongoing theme, which has already been mentioned, and amendment No. 160, tabled by the hon. Member for Eddisbury and his colleagues, actually has precisely the same recommendation as our amendment No. 133. We will hear more about human rights when we get to clause 5 and new clause 3 and in amendments Nos. 81 and 82, tabled by us and the hon. Gentleman for Luton, North. The point of the amendments is that a lot of us—and a lot of organisations—feel that the need to put human rights at the heart of the new commission is not sufficiently in the Bill currently.
The Joint Committee on Human Rights in its recent report made the following recommendation:
“We recommend that the forthcoming merged inspectorate for health, social care and mental health adopts a human rights framework with the intention that the framework informs all of the inspectorate’s work and so makes it more effective in fulfilling its statutory duties.”
It is fairly clear that there needs to be human rights compliance, and of course the Bill is compliant in strict terms with the Human Rights Act, as it has to be. Nevertheless, I feel that at this stage—certainly on the face of the Bill—regard for human rights and human rights legislation has not been given central importance.
On the amendments that apply to clause 1, amendments Nos. 131 to 133 are clearly organisational, amendment No. 131 introduces a deputy chair with responsibility for human rights, amendment No. 132 would appoint a human rights director and amendments Nos. 133 and 160, a human rights committee. Amendments Nos. 130 and 79 apply to clause 2 but are relevant at this stage, hence the grouping. They deal with the functions of the commission, and would ensure that actions and decisions taken by the new commission have full regard for human rights and human rights legislation.
Following the comments made by the hon. Member for Eddisbury, I want to say how strongly we feel that the loophole that currently excludes private care homes must be closed, and I note the Minister’s remarks on that. However, that must not be used as an excuse for not putting human rights legislation and a regard for human rights at the heart of the Bill. I would be concerned were that the case, and I ask the Minister to respond to that point.
The amendments ensure that human rights are at the heart of the new commission and its functions, methodology and, most importantly, its work. I believe that that needs to included in the Bill. I would be delighted if the Minster accepted some or all of the amendments—it would be a wonderful start to the Committee. If he will not, I hope that he will reassure the Committee that that approach and regard for human rights is there, even if it will not be in the Bill.

Angela Browning: In his response to the amendments tabled by my hon. Friend the Member for Eddisbury, the Minister made it clear that he does not want to be—in his terminology—prescriptive with regard to the Government’s setting out in the Bill the specific responsibilities of, for example, the deputy chair or individual commissioners. Further on in the Bill, we will find that he has departed from that just a little, but that is for other clauses.
In public appointments, it is common to see boards advertise vacancies with particular emphasis on the disciplines that the board or organisation is looking for. I hope that as the first group of new regulators is put together, it will be easy to pick up early on whether there are any glaring omissions, such as the failure to identify in the job “spec” people who have knowledge of human rights. In the same way, one would expect to see the appointment of someone to take responsibility for governance throughout the organisation. That is par for the course in many cases. However, in light of the amendments tabled by the Liberal Democrats and those already dealt with on behalf of my hon. Friends, I wonder whether the Minister, who will monitor how these jobs are initially defined, would be minded to intervene were he to discover a glaring omission, and that the organisation had nobody with human rights expertise or governance to guide it.

Stephen O'Brien: All I wish to do with these amendments is, without repeating, to reread my comments from the previous session as they are pertinent. That gives the Minister a second opportunity for reflection even in this short period of time.
The point raised by my hon. Friend the Member for Tiverton and Honiton is important. During the scrutiny of the Bill it is worth making such points, because many people who operate the CQC and think about how to appoint the appropriate people will read the proceedings as part of their job briefing. For anybody who is sufficiently motivated and committed to apply to be in the CQC, one of the tests will be whether they have had the initiative to read our proceedings, and they will have picked up on the sort of operational experience that my hon. Friend has put on the record. I hope that that meets the Minister’s concern about prescriptive legislation, while benefiting from the parliamentary scrutiny process.

Ben Bradshaw: The hon. Gentleman has kindly answered the hon. Member for Tiverton and Honiton’s question. In the meantime, I was hurriedly trying to find out about existing protocols for ministerial interference in appointments made by the Appointments Commission, but I did not get the answer quickly enough. All that I can tell the hon. Lady is that so far in my ministerial experience, I have not, as far as I am aware, ever intervened or taken a critical interest in appointments made by the Appointment Commission because I felt that they did not reflect the sorts of needs and balances that she desires to see.
There is a general view that the Appointments Commission has done an extremely good job, and the hon. Member for Eddisbury is absolutely right: I would expect that one of the first things that the Appointments Commissioner or commissioners responsible for appointing members to the new regulator would do—and, once the new chief executive or chair is appointed, one of the first things that they will also do—is to read the proceedings of this Committee and take into account the comments that have been made by hon. Members. I imagine that that is something that they would do diligently.

Angela Browning: One of the things that one observes from time to time—not in every case, of course—is that a specific board appointment is advertised and certain disciplines and expertise are looked for. It may well be human rights or, quite commonly, as I mentioned earlier, governance. That has been precipitated because of a breakdown and because of problems having emerged through a lack of existing expertise on the board. We want the Minister to do well with this commission; we want him to get off to a good start because whether or not he is detached from it, this will be his baby. He should face up to that, and I am trying to be helpful to him. It is far better that some guidance be given as to the balance of expertise at the beginning, rather than waiting for something to go pear-shaped and then deciding that expertise is needed on the board.

Ben Bradshaw: I know that, sadly, the hon. Lady may well no longer be in this House when the new organisation is up and running, so perhaps she would like to consider potential future activity herself in this regard. I suspect that that is not the first or the last job application that we will encounter—or may already have encountered in our evidence-taking sessions.

Stephen O'Brien: Would the Minister be able to encounter anybody who is a freer spirit and more independent to get us off to a good start?

Ben Bradshaw: The point is well made, but rather than being prescriptive personally—I have already sought advice from my officials because I would like the answer to this question myself—if at the same time we are stressing the importance of the independence of the Appointments Commission, it would be inappropriate for me as a Minister to intervene or prescribe in that way. However, we are making it clear in the Bill that we expect the new Care Quality Commission to fulfil the statutory functions of the existing regulators. It is inconceivable that the commission will not take great care in ensuring that it appoints a board whose balance reflects an ability to fulfil those statutory functions and the human rights requirements that the amendment refers to, which I would like to come to now.
Without repeating too much of what I said in response to the previous set of amendments tabled by Conservative Members, we already make it clear in clause 2 that the commission must, in everything that it does, pay particular heed to safeguarding the rights and welfare of vulnerable people. As a public body, the commission will be subject to the Human Rights Act and will have to carry out its functions in a way that is compatible with that Act. It will be able to look at the performance of providers against registration requirements that follow the spirit of the European convention on human rights. Providers that fail to protect the dignity and human rights of individuals in their care will be liable to the appropriate enforcement action, which could include prosecution or the cancellation of registration.
Amendments Nos. 131 and 133 would establish particular roles within the structure of the new Care Quality Commission, each with the responsibility for human rights issues specifically. Our view is that we should not be over-prescriptive regarding the make-up of the board, and the board should not be made up of delegates. We fear that other groups would then claim that their voices have as much right to be heard—consumers, professionals being regulated, for example—as those set out in the amendment as “human rights” specialists. In her questioning of the previous amendments, the hon. Member for Romsey alluded to the fact that in some cases, having a specialist board appointment could lead to a silo mentality or ghettoisation of a particular issue, and serve to prevent that issue from being integrated properly into every aspect of the board’s—and, indeed, the organisation’s—work and culture. As I said earlier, there is nothing to prevent the board from appointing expert advisers to give it specific advice where it needs additional expertise.
Also, there is a requirement in the Bill for the commission to establish an advisory group and other committees that it sees fit. There is tangible protection for all interests served by the commission in its public accountabilities. It is required to report annually to Parliament, its accounts will be independently audited, and it will be dealing with high-profile and intractable issues that will keep it very much in the public eye. Therefore, we believe it right that the new organisation itself establish its structures and the split of board-level responsibilities. We believe it better to give it the freedom and powers to do so, rather than imposing something separately.
In response to the question from the hon. Member for Tiverton and Honiton, I am advised that the Secretary of State delegates all the functions to which the hon. Lady refers to the Appointments Commission. Technically, the Secretary of State could take them back and intervene, but we are not aware of that ever having happened. For the reasons that I have outlined, I hope that the Members concerned will withdraw their amendments.

Greg Mulholland: This is the second time that I have served on a Committee with the Minister. Last time, we considered the rights of goldfish in fairgrounds and dogs having their tails cut up or not; this time, it is human rights. As ever, I accept some of what the Minister has said, but I do not think that the intention of the amendments is prescriptive. Clearly, some suggestions are intended to probe the general principle, but it is more fundamental than that; we are talking about the key guiding principle that I and many others believe firmly should be at the heart of setting up the commission. There are many people and organisations, including CSCI, that believe that human rights could be strengthened in the Bill in organisational terms. Frankly, it is too important to leave until the stage when the commission is, rightly, looking at the best way to set itself up. I will accept that the particular organisational suggestions may not be the right ones, but I still feel that the principle is right. Therefore, perhaps we can come back to that again, following the Bill going through the House.
I was hoping for more supportive noises from the Minister on the actions and decisions taken. It is fundamental that everything that the commission does has regard to human rights and to human rights legislation. Let me clarify one point: my hon. Friend the Member for Romsey was talking not about the human rights committee but about social care, health and mental health. She fully supports the idea put forward by both parties on this side of the Committee regarding a human rights committee.
Also, I am slightly disappointed that the Minister did not address the specific concern that I raised with him—my hope that the loophole regarding private care homes being dealt with later does not mean that the human rights focus is being dropped from the Bill. I believe that that is very important. I hope that we will come back to this issue, but on the basis that this is an early amendment and there has been a useful discussion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 2

The Commission’s functions

Stephen O'Brien: I beg to move amendment No. 156, in clause 2, page 2, line 1, at end insert—
‘( ) The Commission has the general function of encouraging improvement in the provision of health care by and for NHS bodies and in the provision of adult social care in England.’.
We move to the commission’s functions in clause 2. Even as a trained lawyer, I would have surpassed myself to come up with this. Subsection (1) states:
“The Commission has the functions conferred on it by or under any enactment.”
That obviously does not improve our general understanding. If this is a legislative catch-all, it is unnecessary. Alternatively, perhaps it is based on a concern that the legislation is so framed that we do not yet fully understand the purpose, and that the ability is therefore required to throw at the remit of the commission anything that not just this but any Government might choose to throw at it. That does not seem quite the thorough and rigorous approach to legislation that we would expect of the House, particularly given that the commission is designed to be the successor body to organisations that, it is admitted, already function well. They deserve a little more respect than subsection (1) indicates.
Amendment No. 156 thus puts a general function in the Bill. It really is unobjectionable; I would like to think that the Minister will have no difficulty whatsoever with it. I wish to place on the record that I will not hold him guilty of an overweening pride of authorship—as I frequently have with many of his colleagues—if he will sincerely take points on board in a meretricious way, rather than regarding them as unacceptable simply because they happen to be proposed from this side of the Committee.
I wish to see, through this amendment, Parliament’s will reflected in our purpose of considering this legislation. It is not merely because the amendment builds, as I was describing, on the well-established practices of highly dedicated people who have already committed themselves to doing good work in those predecessor bodies. After all, we are not here just for the purpose of enacting further legislation, but for our service users—our constituents—to ensure that we are their interface regarding what works best for them. This amendment will give service users the explicit assurance that they need that the regulator is acting on their behalf and not on the state’s—as if the state were somehow more important than individuals. I can think of no Bill dealing with a wider or more vulnerable group in society. Therefore, it is important to ensure a clear purpose here.

Sandra Gidley: When I first saw this amendment, I wondered whether such things did not happen automatically. Then I recalled Anna Walker’s saying on Tuesday that she would sometimes take a provider to task, who then said, “Look, we are just not funded for that service”. She felt that the providers had few powers to affect that. Bearing that in mind, the amendment is probably more useful than I first anticipated.

Stephen O'Brien: I am extremely grateful to the hon. Lady for highlighting that aspect of this amendment’s merit. She has done us a service by drawing on the evidence of Anna Walker, whom members on both sides of the Committee have dealt with and whose evidence deserves the respect that it has generated.
I want to draw in some additional support for this idea. In its written evidence on the Bill, the Picker Institute—whose strap-line is “Making patients’ views count”—notes that such an amendment would also
“Clarify what Parliament wants the Commission to achieve, not just what functions are assigned to it: Parliament should say what the Commission is for, not just what it does”.
It is hardly as if my amendment is one of great or extensive verbiage; it is concise and to the point, but equally importantly, it goes beyond the long title. The institute notes that the amendment would
“give the Commission a clear mandate to act on behalf of patients, service users and the public ... enable the Commission to resolve conflicts of interests between stakeholders”,
and
“protect the Commission's user-focused decisions from legal challenge.”
Those of us who have had the privilege at some point in our lives of spending many hours studying the law recognise that nothing frustrates more than the ease with which legislators could have rephrased basic wording so that a whole raft of expensive litigation, challenge and uncertainty—because of the ease with which lawyers can use the ultra vires or intra vires point in their arguments—could have been avoided. When looking at legislation, at this point our discussions cease to be of great value; such Committees are often regarded as being informative but not decisive when it comes to the law. The law is what is on the statute.
I do not want to be over-legalistic in my approach, but that is why this amendment is a matter of legal as well as political principle. I hope that it is consistent with reinforcing what the Government seek to achieve. Far be it from the official Opposition to want to help a Government to deliver their programme—it suits us politically should they fail—but it is incumbent on us all to try to make this legislation better and fit for purpose.

Stephen Hesford: The hon. Gentleman says that the proposal is extra to a list of functions, but the amendment refers to “function”. It is therefore another function, rather than a general philosophy. That is the flaw. Will he highlight one instance when any of the bodies that the successor body is to take over from has been judicially reviewed for acting ultra vires?

Stephen O'Brien: I cannot give such an example because, as far as I am aware, no such action has taken place. However, there could be a reason for that. It is 19 years since I practised professionally as a lawyer and, although I have been a qualified solicitor for some time, I accept that we must all be careful to recognise that, in respect of more well-defined bodies with functions, it is less likely that a judicial review for being ultra vires will take place because their specific responsibilities are more defined.
We are discussing a much larger organisation that must encompass the interests of many constituent groups. There will be a danger that the definition is therefore more generic and that it is more likely, when specific circumstances arise, for lawyers to find an argument in respect of ultra vires. I am not saying that is right, but the answer to the hon. Gentleman’s intervention is that I am not aware of such an example, but when trying to analyse what we are moving to, it is incumbent on me to understand the risks of incurring something that we could avoid by simple drafting.
As for “function”, the main thing is that it is difficult to come up with a different word to describe the ambit of operation. Parliament sets the policy framework—the Minister’s point—but it is then up to those who are establishing the organisation to know precisely the ambit of its functions. What will help the hon. Member for Wirral, West is to understand that I am not making a grand, theoretical point. A regulatory body that is no doubt of great importance to the hon. Gentleman and his constituents, and of which we have had a good four years’ experience, is Ofcom. It has a similar principal duty under section 3(1) of the Communications Act 2003, which states that
“It shall be the principal duty of OFCOM, in carrying out their functions...to further the interests of citizens in relation to communications matters; and...to further the interests of consumers in relevant markets, where appropriate by promoting competition.”
We are absolutely clear at that point about the organisation’s overall remit and ambit. We have no difficulty with it because it has made it much easier for all of us, both as legislators and as representatives of those who sent us here to speak for their interests, to understand its ambit and remit. It is clear that the amendment has a good provenance and a good precedence, which is why I feel with some conviction that it should commend itself to the Minister.
Let us consider clause 105(3) of the Bill in respect of the Council for Healthcare Regulatory Excellence. It states that the
“main objective of the Council in exercising its functions...is to promote the health, safety and well-being of patients and other members of the public.”
As we can see from clause 129, the National Health Service Act 2006 imposes a duty on primary care trusts to
“secure continuous improvement in the quality of health care”.
In their response to consultation on “The future regulation of health and adult social care in England”, the Government stated that
“The Care Quality Commission(‘s)... priority will be to safeguard service users and help improve their experience of health and adult social care services.”
They expect:
“Patients, service users and the public as a whole therefore look to... regulators to ensure the services they use are safe and of good quality.”
I could not have drafted it better myself. There would be no difficulty in adding that to the underlying concept of the Bill. I hope that my amendment in its very crisp form can pick out what the Government have already said that they regard as the primary function and overall ambit of the commission.
The Picker Institute called for the Bill to have a mandate that the Care Quality Commission contributes to the continuous improvement of the quality of health and adult social care services, and the role of the CQC in improving standards is flagged up explicitly by the Secretary of State in his foreword to the response to the consultation. Although commissioning is the principal mechanism that continually drives up the quality of health and adult social care services there is a role for a regulator.
A general statement of function—the word was put into issue by the intervention by the hon. Member for Wirral, West—would give some indication of what the Government expect to lie within, and without, the remit of the CQC. Such an understanding would aid the Committee and both Houses in their deliberation of a Bill that leaves so much to secondary legislation. It would also, to some degree, restrict the ambit of those who might seek to put new responsibilities on the commission at a later date. When all this is done and dusted and we have some years of experience, people might regard this as being an area where they could shuttle in something they did not think of originally.
I have more evidence that I could adduce and perhaps I will have another chance to put it before the Minister, if he finds himself so far not persuaded by what I regard as an unobjectionable case. I hope that he is willing to accede to the amendment, and I also hope it will not concern him that, in the end, he did not author it.

Ben Bradshaw: I certainly do not find the amendment objectionable; I just find it rather puzzling, because clause 2(5) makes it quite clear that we expect the commission to perform its functions in a way that will encourage the improvement of services. The amendment is therefore not objectionable in the least, but it is unnecessarily duplicative.
My other concern is that I think it important that we do not send out a message from the Committee that the commission alone is tasked with improving services. We are establishing the commission to perform a specific role as part of a wider framework for delivering, managing and regulating health and adult social care services. Service providers themselves have a fundamental responsibility to improve services. In addition, PCTs, local authorities and strategic health authorities will have a role in encouraging improvements, as will Monitor, the Independent Regulator of NHS Foundation Trusts and the Audit Commission. Patient choice will increasingly serve as a driver for improvement of services.
I do not object in any way to the amendment, but it is unnecessary and duplicative. I am satisfied that the Bill provides the commission with the improvement functions it requires. I therefore ask the hon. Gentleman to withdraw his amendment.

Stephen O'Brien: I hear the Minister’s request and I am filled with disappointment. I thought that I was not going to have to consider even the idea of a magnanimous victory because I would not claim a victory—it would be a case of common sense having prevailed. I am somewhat disappointed. Further, I am dumbfounded as to why we need clause 2(1), which states:
“The Commission has the functions conferred on it by or under any enactment.”
Without an amendment giving it some kind of ambit, why do we need it in the first place? Surely that is what we are doing—that is why we are here. If we need to make any enactment, I very much hope that we would come back to the matter if it was of primary interest. The powers for secondary legislation are already constitutionally within our rights and within the normal context of the Bill.
I feel disappointed, but to push the amendment to a vote would result in an equally disappointing outcome. One of the few things I can be accused of is being occasionally numerate. I have just counted heads and it is a fairly forlorn cause, so it is prudent to withdraw. I hope the point is well made and that the Minister and his officials will reflect on the fact that it does no harm to be specific, not least because the clause looks pretty odd without any further qualification. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 2, in clause 2, page 2, line 8, after ‘public’, insert
‘, individual Local Involvement Networks and a cooperative group or groups of Local Involvement Networks,’.

Jimmy Hood: With this it will be convenient to discuss amendment
No. 134, in clause 2, page 2, line 29, at end add—
‘( ) For the purposes of this Act, “local involvement network” has the meaning given by section 222 of the Local Government and Public Involvement in Health Act 2007 (c. 28).’.

Stephen O'Brien: Subsection (3)(a) of the clause states that in performing its functions the commission must have regard to,
“views expressed by members of the public about activities to which the functions relate.”
We want to add
“individual Local Involvement Networks and a cooperative group or groups of Local Involvement Networks”.
Amendment No. 2 is accompanied by amendment No. 134. At the end of clause 2—I hope that by the time we get there, it will have already been extensively amended by the successive amendments that are to be debated—we want to insert:
“For the purposes of this Act, ‘local involvement network’ has the meaning given by section 222 of the Local Government and Public Involvement in Health Act 2007”.
That amendment would ensure that we get some joined-up thinking in successive pieces of Government legislation. I hope it could be a demonstration of their earnest, rather than mine, to decentralise and not be so prescriptive from Whitehall and on high, and to recognise that there is a more organic way of having accountability in our British polity.
I hope that the amendments will make the commission pay heed to the patient and service user voice through local involvement networks—LINks—and HealthWatch. HealthWatch is an organisation that we proposed and argued for. I hope that during these Sittings we shall introduce our own Bill, which encompasses the establishment of HealthWatch. We are desperately keen that the Government should continue the practice that they have been all too keen on recently, which is to copy our excellent policies.
The Government have long sought to undermine the strong patient voice. I take that very personally. The Government used the example of just one or two underperforming community health councils in 1999—when I was first elected at a by-election—to put together the NHS 10-year plan. I am sure that my hon. Friend the Member for Tiverton and Honiton recalls that during a Prime Minister’s Question Time I asked the then Prime Minister whether he was aware of the outrage that he had caused by saying that he wanted to axe community health councils. People up and down the land were really cross. He said that it had been decided by consultation, and then realised that it had not been, so I received a very nice three-page letter. It started with “Dear Stephen”. It did not, however, end with a “Love Tony”, but a “Yours ever, Tony”. I had only been in the House a few months. The whole point is that I had, somewhat fortuitously, tripped him up.
It was appalling that community health councils were axed without consultation. They had a stay of execution for a year, and they lost. Surely that is a lesson that we have all learned. We lost the expertise that comes from deeply committed people who care for those with health and social care needs. They knew that what was really required was the trust that comes through independence, and being able to help people, to hold their hands and chart a route when they feel vulnerable and still need to rely on the services about which they might have a genuine complaint.
That local involvement is vital. The shadow Health team has been exercised about the successor bodies to community health councils, none of which has been able to settle down. We have LINks, and we had the Commission for Patient and Public Involvement in Health (CPPIH) before that. It has been a difficult process. Following the axing of the community health councils, the patient and public involvement forums, through the CPPIH, were deemed to be too outspoken so the Government have done away with them as well. The Government must be honest and say that they are on the back foot with regard to public perception, and that they would really like to see patient voice having an influence on the delivery of health and social care.

Ashok Kumar: I listened carefully to what the hon. Gentleman said about community health councils. He painted a glowing picture of community health councils and I agree that in certain areas, they were very good. However, that was not the case universally. There were some good councils and some bad and disastrous ones. In my area the councils were very good. The Government tried to introduce a new mechanism, hopefully universal, which was to be better than the community councils. We should not say that everything was great, it was not—it was good in some areas and patchy in others.

Stephen O'Brien: I am grateful to the hon. Gentleman, as we must be careful not to stray out of order. I recognise that, but we are talking about how to get genuine public patient involvement in a process that matters to those vital services. If I recall correctly, of 107 community health councils, four were recognised as performing extraordinarily badly and another 11 needed improvement. The rest were regarded as performing extraordinarily satisfactorily—a point that has been finessed and overlooked by the Government. I am sure that the hon. Gentleman will want to check the record, but I think those numbers are right.
As a result, once that argument had been lost, what happened with the successor bodies was that not only did we lose their expertise and experience but we also lost their independence. The successor bodies were within the NHS ambit, which meant that complaints and vulnerabilities were kept within it, too. It was part of there being no more public complaints about the NHS, which is a more political approach. Trust comes from knowing that you have an independent body. I have strayed as far as I dare, to ensure that I answered the intervention, but I want to stay within the ambit of amendments Nos. 2 and 134.
It is fair to pay tribute to the fact that, during the course of the Local Government and PublicInvolvement in Health Bill, it was the peers in another place, the noble Lords on my party’s Benches, who secured Government concessions, in particular under section 223 which enabled LINks to come together for the purpose of making reports. We should not forget—we have already had one example—how important this more generic collective analysis and information is. The old community health council Bed watch is one of the best examples, as it drove improvement and highlighted the complexity of issues that were prevalent in the health service at the time. That would not have happened otherwise, as it was perceived as objective rather than part of the vested interest of the health care providing community.
In December 2005, an independent review of the NHS’s regulatory framework, ordered by the Department of Health concluded that
“the importance of consumers/patients in the values of Health Service reform is frequently expressed but not always so effectively mobilised. Establishing”—
and this is the important point—
“representative national and regional fora to contribute a reasoned collective consumer perspective to the process of reform could well improve both the efficacy and legitimacy of that reform.”
That was in a letter from David Currie, the chairman of the Department of Health’s wider review of regulation, dated 18 January 2006, to the former Secretary of State, the right hon. Member for Leicester, West (Ms Hewitt). To bring this into perspective, the Picker Institute’s submission noted that in its response to the consultation preceding the Bill, the Department stated that
“many responses supported the greater input from patients and users of services proposed in the consultation document. Responses were very clear that participation needed to be based around genuine involvement, using a variety of methods in order to promote equality and proper representation of the interests of patients and users of services”.
In their response to the consultation, the Government stated:
“The Care Quality Commission will be a user-focused organisation. Its priority will be to safeguard service users and help improve their experience of health and adult social care services”—
again, I emphasise the point—
“recognising that it can only do this effectively by involving them. It will be able to build on the good work by the Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission, which all emphasise the importance of involving service users, and their carers, in their work.”
In paragraph 43 of its submission, the CSCI stated:
“It would be useful if there were an explicit expectation that the new care Commission had a relationship with Local Involvement Networks.”
The Healthcare Commission considers as the first
“clear principle...underpinning the design of a regulatory framework”
that the regulatory system
“should focus on the needs of the patient and the public.”
The MHAC notes as the second function that it deems “vitally important” for the new regulator that it should
“engage mental health service users actively as full partners in health and social care assessment, monitoring and inspection.”
Furthermore, we have the views of Age Concern, which has called for
“amendments to the Bill to add the views of patients, service users and carers to the general provision that the Care Quality Commission must have regard to the views of the general public.”
Carers UK has called for a higher profile for carers. Help the Aged has called for “explicit reference to user involvement in Clause 2”.
Which? notes in its submission:
“It is a startling omission—
its words, not mine—
“that the new body charged with overseeing the quality of health and social care will not have a duty to take patients’ views into account in the course of their work.”
I hope it is seen that I am not arguing in an opportunistic way, simply because the point has arisen. As the Minister knows, because we have published a document that I would like to believe he has read, as the Official Opposition and as a party we have committed to establishing a national consumer voice for patients called HealthWatch, to provide local support to patients at national level, and leadership to LINks at local level; to incorporate the functions of the independent complaints and advocacy service; to make representations to the NHS board on, for example, the closure of NHS services, and, subject to consultation, have statutory rights over guidelines issued nationally concerning the care NHS patients should receive and decisions affecting the provision of NHS care in an area.
Conveniently for the Minister—I hope this is not too tongue-in-cheek—the drafting of the documentation, the concept and the policy are there to pick up. I would like to have private authorship, but actually it would suit us and everybody if the Government were prepared to pick up that policy. The Bill is a vehicle suitably available to make that happen sooner, rather than waiting for a change of Government, although of course I hope that will be in rather short order. Most important, we need to ensure that we deliver on what has already been the Government’s own response to the consultation, which was overwhelming in wanting to see the proposals delivered in the Bill.
Why have the Government not sought a statutory relationship between the CQC and LINks? What assessment has the Minister made of the CSCI’s contention that there should be such a relationship? Does he see a place for a strong national patient and service user voice in the provision of health care in this country, and in the CQC? What assessment has he made of David Currie’s conclusion of the need for
“representative national and regional fora to contribute a reasoned collective consumer Perspective”?
Why, when the Department noted in the response to consultation the desire for patient and user involvement, and itself committed to the CQC being a user-focused organisation, has it not made any mention of such users?
It is with those arguments, which I would like to think are reasonably cogent, that I press the amendments. We have an absolutely vital opportunity—something which the Minister could, with some of that critique, be keen to take up—to ensure that the Bill is grounded in the interests of patients and service users, which I am sure we all feel is our duty and obligation.

Sandra Gidley: I shall speak briefly because many of the points that I wanted to make have been comprehensively covered. I want to express support and put on record my concern, which is obviously shared by the hon. Member for Eddisbury and other colleagues, that an overwhelming theme from some of the submissions we received is the lack of a duty to consult the public, and concerns about how the public and patients will link with the proposals.
This is a welcome amendment, to try to deal one of the concerns raised by Members on both sides of the House on Second Reading. Given the direction of Government thinking and the increasing amount of patient and public pressure, one almost hopes that it would be superfluous, but it sends a useful signal to put something like that in the Bill itself. It would reassure, at the outset, all the bodies that have raised concerns. They can then concentrate, perhaps, on other aspects of the Bill or health care.
It is useful to have a specific link with LINks. My one reservation would be that we have yet to see how that will pan out in practice and what the local variations will be.
The Health Committee raised a number of concerns on that very matter. I note that one of the final questions to the Minister was, “Why have the Government not sought a statutory link?” I think that the hon. Member for Eddisbury has answered his own question, because, as he alluded to, there are the community health councils, the patient forums and also LINks.
I have to ask how long it will be after the legislation is enacted before having to amend it, for the very reason that LINks may not have worked and we will be faced with looking at yet another replacement. I hope that that is not the case. I do not want to be accused of being overly cynical but, given the doubt about the future of LINks and how it will work in practice, that it is a legitimate concern.

Stephen O'Brien: I am grateful to the hon. Lady for giving way, and I am again grateful for her endorsement of and support for this idea. Not least because of her personal involvement in the health-care related field of pharmacy, does she not agree that the independence of those who are probably the best route-finders and hand-holders for vulnerable groups is the best guarantee of their trust—the fact that someone is available to work in their interest? We are still somewhat sceptical—rather cynical, I dare say—about the effects of the Government’s proposal because of that absence of independence for community health councils. Even though, admittedly, 14 of them were not up to snuff, the fact that they were independent gave them that trust.

Sandra Gidley: I agree that independence is essential, but the public perception point of view can be even more important. Some organisations that are not ostensibly independent have done a reasonable job, but public perception should not be ignored easily and independence gives greater public confidence. I support the hon. Gentleman’s comments.

Ben Bradshaw: I make it clear from the outset to members of the Committee that I entirely agree that involving and listening to users, patients and the public will be a central responsibility for the new commission. Clause 2 ensures that the commission, in everything that it does, must have regard to the public’s views on the services that fall within its remit, and to their levels of satisfaction with services.

Sandra Gidley: Will the Minister give way?

Ben Bradshaw: In a moment. The hon. Lady may be interested in what I am about to say.
In addition, schedule 1(6) makes clear that the commission has a duty to establish at least one advisory panel. We would expect that mechanism to cover patients’ and users’ views. The commission may choose to establish further panels, but it will be able to decide. Given the views expressed by Committee members today, and by Committee members and witnesses during Tuesday’s evidence session, regarding these and subsequent amendments that we will be debating on the duty to consult, tabled by the Liberal Democrats, I am still reflecting on that issue.
However, I do not think that the amendment requiring a statutory relationship with LINks is the right way to go about the matter. I made it clear on Second Reading that I believe it important that the current commissioners and the future commissioner work very closely now and in future with LINks on their inspections and how they go about their work. However, I am not sure that singling out LINks, as opposed to other organisations, for special treatment in the form of a statutory relationship is necessarily the right way of going about it. I hope that, in the light of that statement and of the assurance that I have given that we are still reflecting on this issue—[Interruption.] I give way to the hon. Member for Romsey.

Sandra Gidley: I welcome the Minister’s assurance that he is still reflecting, but I think that the main concern is that although the commission must have regard to the views expressed, the wording in the schedule is “may consult”. There seems to be no compunction to consult, if we end up with a commission that feels that that is something it cannot afford. Given the financial constraints, there are also concerns that this might be something that the commission wants to do but cannot afford to do.

Ben Bradshaw: The hon. Lady puts her finger on exactly the problem that we face. The advice that I received from lawyers suggests that it is quite difficult to frame a broad duty to consult—we will come to this later in detail, but we are dealing with it now—both legally and in terms of burdens that that duty might place on the commission that it does not feel are justified in a particular instance. However, it is an issue that we are looking at carefully and I will undertake to come back to the Committee at a later stage with clearer thinking on it. I simply do not think that this amendment is the best way of going about it.

Stephen O'Brien: I am encouraged by the Minister’s saying that he is still reflecting, and I think it right that he do so. I am equally encouraged that he recognises the importance of this matter, and I thank him for saying that he will come back to the Committee with further thinking, once he has had an opportunity for his thought to gestate somewhat.
In the course of his reflection, I hope that the Minister might also give thought to what he has just said—I dare say that we are about to hear it again when we come to the broad duty issues—about the advice that he has taken, which may well be based on the approach that the parliamentary draftsmen have taken, or on the external legal advice that may be available to him about the difficulty of framing these duties. Perhaps he could also look at the issue the other way—not so legalistically—and consider, however it might be done, how to require this organisation not just to consult and listen to the views of the public and service users in a discretionary way, as a matter of good practice and management, but to be actually auditable by them.
Perhaps the better example on this occasion is to draw from what the Government themselves have been doing about the expectations that they believe are incumbent on private sector operators in the commercial sector regarding their public duties and community roles. For instance, in corporate social responsibility, one would expect to see a useful programme of such responsibility properly reported and commented on—audited, even—in an annual report.
Although I am the last person to want to be over-prescriptive by giving anybody more regulation to contend with, because these are unrecoverable, burdensome, non-operational costs, it is none the less important to raise the expectations and priorities of those who will be charged with delivering this service. So I hope that, rather than just looking at this matter as a legislative, framing or drafting issue—the difficulties of which I have some sympathy with, such that, as the Minister has probably perceived, I am likely to withdraw the amendment—the report that we will receive from him once he has had time to reflect will consider how to ensure that the expectation posited of an audit and report takes place, and will consider the consequences in terms of the decision making and operation of these bodies. I hope that that is seen as a constructive proposal.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 157, in clause 2, page 2, line 16, after ‘and’, insert ‘adults, and in particular’.
I hope that I can dispatch this amendment with some brevity, which may be welcome. Clause 2 states:
“In performing its functions the Commission must have regard to...
(d) the need to safeguard and promote the rights and welfare of children and vulnerable adults”.
My simple amendment seeks to focus the CQC on all adults, in order to prevent it from getting too fixated on received and perceived identified groups of “vulnerable adults”.
I am sure that the Minister recalls that Anna Walker, in her oral evidence, said:
“What our work at the Healthcare Commission has taught us is that we have a number of groups of people who are vulnerable: the elderly, the mentally ill, those with learning disabilities, children”—
who are not relevant, as we know, to this Bill—
“and sometimes people with long-term conditions who are absolutely dependent on the health care and the social care that they get.”——[Official Report, Health and Social Care Public Bill Committee, 8 January 2008; c. 16, Q22.]
While “vulnerable” is used in the clause, it encompasses a larger span that might in other people’s terms become part of the all-adult group. Furthermore, carers are a group of people about whom we are all very exercised and for whom we want to achieve better support, and who are so vital to the interests of those for whom they care. While being seen as partners in care, Carers UK wants them to be given the recognition and support—practical, financial and emotional—that they need. The strength of the amendment turns on the meaning of “vulnerable” and, while vulnerable groups can be identified, situations could supposedly put invulnerable people in a position of vulnerability.

Kelvin Hopkins: I am not a lawyer and the hon. Gentleman is. I accept that the amendment is a drafting amendment, but would a lawyer say, “Well, this particular adult is not a vulnerable adult and is therefore not covered by the Act”? Is that a possibility?

Stephen O'Brien: I do not believe so. If I had, I would not have tabled the amendment. The best way in which to describe it is to track back all the way to our maths lessons and the Venn diagrams. Let us imagine that the first circle is all adults and there are then vulnerable adults, and that the amount of the shared bit in the middle can change according to how some people define vulnerability. It is important for us to recognise that temporary illness is an obvious place where people can move from being a vulnerable adult to a invulnerable adult. We must be careful to make sure that we encompass a duty in respect of all adults, but that we rightly focus on those who are particularly vulnerable, without excluding those who are not.

Kelvin Hopkins: The hon. Gentleman is selecting a subset of adults whom a lawyer might not regard as particularly vulnerable and might say are not covered by the Bill. I shall not delay the hon. Gentleman any more.

Stephen O'Brien: I am grateful to the hon. Gentleman. The clause, as drafted, refers to
“the need to safeguard and promote the rights and welfare of children and vulnerable adults”.
All I hope to achieve by the amendment is that the duty is for all adults. Some of them might be regarded as not currently vulnerable, but their needs should become part of what the duty of care and the services cover. I hasten to say that he was being supportive because, if the provision leads with vulnerable adults, lawyers have to say, “Are you in the class that was intended by Parliament to be covered under the Bill?” I am sure that the Minister will agree that the last thing we want is a great bunch of shady lawyers trying to describe, as of today, who vulnerable adults are.
Such issues can move around, which is why I am suggesting that the duty applies to all so that there is no opportunity for people to say, “You are no longer eligible for the services that are covered in this area.” We know that, when pressures are placed on either capacity or finances, it is eligibility criteria that are looked at first. I am sure that all of us know of many examples in our constituencies where local government has sought to tighten the eligibility criteria for social care services. The matter under discussion is such an area.

Angela Browning: My hon. Friend will not be surprised to know that I am delighted, in our first day in this Committee Room, when picking up on his argument, to be able to mention the group of people diagnosed with Asperger’s syndrome. They are a classic example of the point that he is making. Most social services departments regard those with learning disabilities as people with IQs of under 70. With Asperger’s syndrome, people can have exceptionally high IQs, but face vulnerability in some pretty basic core issues, such as looking after themselves and being safe in certain situations. There is a dichotomy of sometimes high intelligence and vulnerability in the same person. It is often the case that social services will deny appropriate services and care to that group of people purely because they do not meet the artificial IQ of learning disability tests. In fact, the Minister’s Department has actually put out a circular advising social services departments to examine such issues and to at least give an assessment to people with a diagnosis of Asperger’s. This was picked up in our—

Jimmy Hood: Order. I think that I have been super-generous with the hon. Lady.

Angela Browning: You have been, Mr. Hood. Thank you. I have made my point.

Stephen O'Brien: Indeed you have been generous, Mr. Hood, but the whole Committee was listening to the point with respect as well as care, because no one in the House has been more assiduous than my hon. Friend in attending to the arguments on behalf of, and the needs of, those who have conditions on the autistic spectrum, particularly Asperger’s. We pay tribute to her on that score. If she had not quite finished her point, she might need to catch your eye, Mr. Hood, if she gets the chance, at a later point.
What my hon. Friend says is absolutely right and I hope that it reinforces the point that the dialogue between the hon. Member for Luton, North and me was seeking to wrestle out. One can be over-exercised by the legal terms, but this provision is likely to be used by those who are not lawyers, who will be thinking, “What does this mean? What did Parliament intend by putting an adjective in front of the word ‘adults’? It must have meant something. It can’t be nothing.” Therefore, we have to react in some way.
If the Minister says that he will accept the amendment, I will quietly give three cheers. If, however, he seeks to resist it—I always worry that he has a white piece of paper that has only the words “Resist this” on it—I hope that this discussion will lead to some reflection. I hope that people will use the experience that is obviously within his Department, given the circular that my hon. Friend mentioned, and borrow from that experience to give this a better legislative intent and to ensure that we do not give a hook to those who might be looking to restrain the eligibility criteria as to where the services should bite. All that said, I hope that the Minister has been persuaded.

Ben Bradshaw: Resist and reject, as I was advised earlier by my officials, are synonymous, although the spirit of our discussion about the previous amendments, and future ones on patient involvement, shows that I am always willing to listen and reflect where I think that that is justified. I shall explain my problem with this amendment.
Clause 4 is intended to make particular provision for those vulnerable groups that are less likely to be able to act as advocates for themselves. The hon. Gentleman’s amendment would extend particular provision to everyone, in which case it would no longer be particular. If we extend particular provision to all adults and children, that is everyone, by my reckoning, it can no longer be defined as particular, which negates the whole point of it.
Age Concern’s mental health advocacy project and the CSCI were very keen on ensuring that the vulnerable adults and children whom they deal with at the moment were given this particular recognition and provision in the legislation in relation to the new commission. The difference is that they have particular needs. It would not be appropriate to extend the provision to all patients and service users, many of whom are more than capable of self-advocating and who would have no difficulty in exercising the increased levels of choice and participation that we are introducing to the health and adult social care system. That is the reason for our position. What I have described is probably not the intention of the amendment, but it is certainly our interpretation of what it would mean.

Stephen O'Brien: Naturally, I am disappointed that we have now found two words—resist or reject—but there we are. The dialogue that we have had on this issue has probably served its purpose. I am confident that the Minister and his officials will use the process of our proceedings to ensure that they reflect carefully on the arguments that have been adduced, and perhaps the issue will be considered again. I take the point about the later clause that is intended to focus on the advocacy point, if I can put it that way. I am trying to be inclusive rather than exclusive and I think that that is precisely what the hon. Member for Luton, North was also trying to flush out, but at the same time we cannot have a Venn diagram where, in effect, there are no sides. I accept that this is a somewhat difficult point, but I hope that the Minister takes the point as being well meant. Given that we may see something at a later date, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Stephen O'Brien: I beg to move amendment No. 92, in clause 2, page 2, line 20, at end insert—
‘(g) the need to promote co-operation between the Commission, the Health and Safety Executive, the Food Standards Agency, police forces and other bodies authorised to enter and inspect registered premises, including local authorities.’.
We are making rapid progress towards the end of clause 2(3). Paragraph (g) would add another matter to which the commission must have regard in performing its functions. It is patently intended to promote co-operation between relevant public bodies, on which I think we all aspire to see much better performance.
People count on local agencies to work together, and they often do not care where something comes from; they just want to see it work. That requires the fantastically difficult business of joint and co-operative working, across Government and Whitehall as well as at ground level, between the various public bodies and agencies. That is often about sharing information for the better protection of vulnerable people. Although we can often imagine how that might work, it gets difficult when agencies are dealing with vulnerable people, as there is highly sensitive and personal information involved. Need I say more than that we have had a couple of months when the sharing of information by Government has often been with people whom we might not have wished?
As we have argued, the commission cannot and must not allow itself to operate in a regulatory silo. I am sure that the Minister has picked up from both its representations and oral discussions that the Local Government Association believes that the Bill should be amended to ensure that at national level, the new regulator takes into account the roles and responsibilities of other bodies when issuing guidance and developing policy, and at local level shares information with other enforcement agencies such as the police and local authorities. The rationale is to work against another ClimbiÃ(c)-type event. We all feel seized to do everything that we possibly can to limit the risk of that ever happening again. I know that I speak for everybody across the House on that. There is also a role for the CQC in supporting and working alongside councils on their ambitions for local communities.
The LGA has also been concerned that the CSCI has not joined other statutory agencies in developing national protocols for the investigation of deaths, nor has it consistently taken part in local enforcement co-ordination meetings. Paul Snell, who spoke for the CSCI, asked in his oral evidence whether the Bill sufficiently encouraged the co-operation of local authorities in support of the new commission’s work. I do not want to get into an argument of merit about who has been co-operating, but there has clearly been a problem. As we have been advised of it, we are on notice, and as a legislative body we have an obligation to make it better and fix it while we are addressing the matter and have an opportunity through the Bill.
What assessment has the Minister made of the cross-agency work of the three current regulatory bodies, and what guarantee can he give the Committee that the CQC will not operate in a regulatory silo?

Ben Bradshaw: I certainly agree with the sentiments behind the amendment, but I draw Committee members’ attention to clause 63 and schedule 4, which we believe deal adequately with co-ordination and interaction between the new regulator and other bodies and institutions. Clause 63 requires the commission to
“promote the effective co-ordination of reviews and assessments carried out by public bodies or other persons in relation to the carrying on of regulated activities.”
As that covers all public bodies, it includes all those mentioned in the amendment.
Schedule 4 deals with the Care Quality Commission’s interaction with other authorities. In particular, it requires the commission to produce an inspection programme and framework from time to time, on which it must consult a number of other inspection authorities as set out in paragraph 1(2) of the schedule. They are the main public sector inspection authorities, but there is nothing to prevent the commission from consulting other bodies that enter and inspect premises if it believes that that would be beneficial. I entirely agree with the sentiments behind the amendment, but the matter is adequately dealt with in other parts of the Bill.

Stephen O'Brien: To demonstrate that I am listening, am not close-minded and have no private authorship, I will say that that was an extremely convincing reply and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley: I beg to move amendment No. 128, in clause 2, page 2, line 20, at end insert—
‘(3A) In determining the views expressed by members of the public the Commission shall have aduty to undertake consultation with such bodies and individuals as the Secretary of State my by regulation specify.’.
Let me start by apologising for the two typographic errors, which I noticed only yesterday. The most important one is that the last line should read “may by regulation specify”. I put it down to being human.
We have had preliminary discussions about the need for greater clarity regarding the commission’s duties to consult with the public and various groups. The Minister has said, rather reassuringly, that he is still thinking about these matters. That is heartening. The purpose of the amendment is to clarify clause 2(3)(a), which states that the Commission must have regard to
“views expressed by members of the public”.
It would be helpful to tease out the Government’s thinking on that.
Is the purpose of the clause merely for the Care Quality Commission generally to have regard to public reaction, or is it intended to be something a little more meaningful? Obviously, the views of the wider public are important. The amendment attempts to provide a mechanism that will place on the commission a direct duty to pay regard to the people who use the services that the commission will regulate. The specified groups could include—I am not being prescriptive at this stage—patients, service users and informal carers. It is easy to forget carers, and they often feel that they are not given due regard. I think that we, as Members of Parliament, are aware of what they do and are very grateful for it, but there are not always mechanisms in place to find ways of automatically engaging with them. The nature of what they do means that they are very busy doing other things.
The amendment could also include professional groups. Such groups are not usually backwards in coming forwards, but there are cases in which they should be consulted. It could be said that the Government’s wording is a catch-all, but it would be useful to have more clarity in the Bill about the range of people who should be consulted on a given matter. That would help to ensure that no one is forgotten and that any future commission would automatically ensure that it has the widest range of views at its disposal.
There is a certain amount of inconsistency in the Bill, in that the Council for Healthcare Regulatory Excellence and the Office of the Health Professions Adjudicator will have a duty to consult. In the interests of consistency, is there any reason why that laudable principle should not also apply to the Care Quality Commission?

Stephen O'Brien: As the hon. Lady indicated, we have cantered through this matter, and I think that her proposals have the same motives and thrust as our link amendments. Of course, I hope that she fares better than I did with the Minister. Maybe her charms will work better than mine.
I hope that in this short time the Minister has had a chance to reflect on the idea of pushing into the warp and weft of what we are designing and constructing in this Bill the organic motive of linking with people and the users. I hope that he can now support that. Whether he chooses to accept the amendment, or change his mind on reflection, I hope that we can make progress in this area. As always, I live in hope rather than expectation.

Ben Bradshaw: I do not discriminate between the charms of the hon. Members for Eddisbury and for Romsey, and I am a great supporter of the organic linking of people—whatever that means.
As I indicated earlier, however, the matter before us presents us with some challenges—not just drafting challenges, but ones highlighted in the comments of the hon. Member for Romsey. We risk returning to the tension, touched on throughout this afternoon’s proceedings, between prescribing a list of whom the new Care Quality Commission would have a duty to consult, and providing that they should have a broadly drawn duty, which might present them with unlimited demands from all sorts of people and organisations wishing to be consulted. I can assure the Committee that I am still reflecting on that. In the light of that, I hope that the hon. Lady will withdraw her amendment.

Sandra Gidley: I accept that the wording of the amendment left a little to be desired, but it is important that we discuss and tease out the broad principle. I am reassured by the fact the Minister is reflecting on the matter, and I hope to see some Government amendments on Report. If I do not, I am sure that we will revisit the matter. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Further consideration adjourned.—[Steve McCabe.]

Adjourned accordingly at three minutes past Four o’clock till Tuesday 15 January at half-past Ten o’clock.